Exhibit 6
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made as of this 30th day of March, 2001 (the "Effective Date"),
by and among America Online Latin America, Inc., a Delaware corporation having
its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), America Online, Inc., a Delaware
corporation having its principal place of business at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("AOL"), Aspen Investments LLC, a Delaware limited liability
company having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Aspen") and Atlantis Investments LLC, a Delaware
limited liability company having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Atlantis", and together with
Aspen, "ODC"). AOL, Aspen and Atlantis are sometimes hereinafter referred to,
collectively, as the "Stockholders" and, individually, as a "Stockholder."
WHEREAS, the Company, AOL and Riverview Media Corp., a British Virgin
Islands corporation ("Riverview"), entered into a Registration Rights Agreement,
dated as of August 7, 2000 (the "Original Agreement");
WHEREAS, on August 11, 2000 the Company issued in its initial public
offering 4,000,000 shares of Class A Common Stock (as hereinafter defined) to
each of AOL and Riverview (the "IPO Class A Common Stock");
WHEREAS, pursuant to the AOL-LA Share Transfer and Assignment
Agreement, dated as of December 28, 2000, by and between Riverview, Aspen and
Atlantis (the "Assignment Agreement"), Riverview assigned to each of Aspen and
Atlantis all of its right, title and interest in and to 48,649,203 shares of
Series C Preferred Stock (as hereinafter defined), and 2,000,000 shares of IPO
Class A Common Stock;
WHEREAS, pursuant to the Assignment Agreement Riverview assigned to
Aspen and Atlantis all of its rights and obligations under the Original
Agreement, which rights included certain registration rights with respect to the
Class A Common Stock issuable upon conversion of the Series C Preferred Stock;
WHEREAS, the Company has an authorized capital of 1,750,000,000 shares
of common stock, consisting of 1,250,000,000 shares of Class A Common Stock, par
value $.01 per share (the "Class A Common Stock"), 250,000,000 shares of Class B
Common Stock, par value $.01 per share (the "Class B Common Stock"), 250,000,000
shares of Class C Common Stock, par value $.01 per share (the "Class C Common
Stock", and collectively with the Class A Common Stock and the Class B Common
Stock, the "Common Stock"), and 500,000,000 shares of Preferred Stock, par value
$.01 per share, consisting of 150,000,000 shares of Series B Redeemable
Convertible Preferred Stock, par value $.01 per share (the "Series B Preferred
Stock"), 150,000,000 shares of Series C Redeemable Convertible Preferred Stock,
par value $.01 per share (the "Series C Preferred Stock"), 25,000,000 shares of
Series D Redeemable Convertible Preferred Stock, par value $.01 per share (the
"Series D Preferred Stock"), and 25,000,000 shares of Series E Redeemable
Convertible Preferred Stock, par value $.01 per share (the "Series E Preferred
Stock," and collectively with the Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock the "Preferred Stock");
WHEREAS, as of the date hereof AOL owns all of the issued and
outstanding shares of Series B Preferred Stock and ODC owns or has the sole
voting power for all of the issued and outstanding shares of Series C Preferred
Stock;
WHEREAS, on August 7, 2000, the Company issued to AOL a warrant (the
"Warrant") to purchase 16,541,250 shares of Series B Preferred Stock and/or
Class B Common Stock and/or Class A Common Stock;
WHEREAS, AOL has agreed to purchase shares of Series D Preferred Stock;
WHEREAS, Aspen and Atlantis have each agreed to purchase shares of
Series E Preferred Stock;
WHEREAS, upon the satisfaction of certain conditions, the Series D
Preferred Stock will automatically convert into Series B Preferred Stock and the
Series E Preferred Stock will automatically convert into Series C Preferred
Stock;
WHEREAS, AOL may elect to convert any or all of the shares of Series B
Preferred Stock and Series D Preferred Stock into shares of Class B Common Stock
and ODC may elect to convert any or all of the shares of Series C Preferred
Stock and Series E Preferred Stock into shares of Class C Common Stock;
WHEREAS, AOL may elect to convert the shares of Class B Common Stock
received upon conversion of the shares of Series B Preferred Stock and Series D
Preferred Stock into shares of Class A Common Stock and ODC may elect to convert
the shares of Class C Common Stock received upon conversion of the shares of
Series C Preferred Stock and Series E Preferred Stock into shares of Class A
Common Stock;
WHEREAS, AOL desires to have its 4,000,000 shares of IPO Class A Common
Stock be subject to the registration rights set forth in the Original Agreement;
WHEREAS, AOL desires to have the Class A Common Stock issuable upon
conversion of the Series D Preferred Stock be subject to the registration rights
set forth in the Original Agreement;
WHEREAS, if the Series D Preferred Stock is converted into Series B
Preferred Stock, AOL desires to have the Class A Common Stock issuable upon
conversion of such Series B Preferred Stock be subject to the registration
rights set forth in the Original Agreement;
WHEREAS, Aspen and Atlantis each desire to have the 2,000,000 shares of
IPO Class A Common Stock that were assigned to it by Riverview pursuant to the
Assignment Agreement be subject to the registration rights set forth in the
Original Agreement;
WHEREAS, Aspen and Atlantis each desire to have the Class A Common
Stock issuable upon conversion of the Series E Preferred Stock be subject to the
registration rights set forth in the Original Agreement;
WHEREAS, if the Series E Preferred Stock is converted into Series C
Preferred Stock, Aspen and Atlantis each desire to have the Class A Common Stock
issuable upon conversion of such Series C Preferred Stock be subject to the
registration rights set forth in the Original Agreement; and
WHEREAS, the Company and the Stockholders desire to amend and restate
the Original Agreement as described herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the parties hereto hereby agree as
follows:
Section 1. Definitions
Section 1.1 Capitalized terms used herein without definition have the
meanings assigned to such terms in the Stockholders' Agreement (as defined
herein). As used in this Agreement, the following terms shall have the following
meanings:
"Advice" shall have the meaning given in Section 6(c).
"Agreement" shall have the meaning given in the Preamble.
"AOL" shall have the meaning given in the Preamble.
"Aspen" shall have the meaning given in the Preamble.
"Assignment Agreement" shall have the meaning given in the third
Whereas Clause.
"Atlantis" shall have the meaning given in the Preamble.
"Business Day" shall mean any day, other than a Saturday or Sunday, on
which federally chartered banks in the United States are open for business.
"Class A Common Stock" shall have the meaning given in the fifth
Whereas Clause.
"Class B Common Stock" shall have the meaning given in the fifth
Whereas Clause.
"Class C Common Stock" shall have the meaning given in the fifth
Whereas Clause.
"Commission" means the Securities and Exchange Commission, or any
successor agency performing the functions currently performed by the Securities
and Exchange Commission.
"Common Stock" shall have the meaning given in the fifth Whereas
Clause.
"Company" shall have the meaning given in the Preamble.
"Demand Filing Date" shall have the meaning given in Section 3.2.
"Demand Holder" shall have the meaning given in Section 3.1.
"Demand Registration" shall have the meaning given in Section 3.1.
"Demand Request" shall have the meaning given in Section 3.1.
"Effective Date" shall have the meaning given in the Preamble.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, as
amended.
"Holder" means, as of any date, AOL, ODC (and shall include Aspen and
Atlantis, individually) and each other Person to whom either of them shall have
assigned any rights hereunder in accordance with the provisions of Section 10.6
and who owns Registrable Securities as of such date.
"Indemnified Party" shall have the meaning given in Section 8.3.
"Indemnifying Party" shall have the meaning given in Section 8.3.
"IPO" means the initial public offering of the Class A Common Stock
pursuant to an offering registered under the Securities Act.
"IPO Class A Common Stock" shall have the meaning given in the second
Whereas Clause.
"Lock-Up Agreement" means the agreement between each Stockholder and an
underwriter for the IPO, pursuant to which such Stockholder agrees that it will
not, during the Lock-Up Period (as defined below) offer to sell, contract to
sell, or otherwise sell, dispose of, loan, pledge or grant any rights with
respect to any shares of Common Stock, any options or warrants to purchase any
shares of common stock, or any securities convertible into or exchangeable for
any shares of Common Stock now owned or hereafter acquired directly by the
Stockholder or with respect to which the Stockholder has or hereafter acquires
the power of disposition.
"Lock-Up Period" means the respective period agreed to in a Lock-Up
Agreement by each Stockholder and an underwriter for the IPO during which time
such Stockholder agrees that it will not offer to sell, contract to sell, or
otherwise sell, dispose of, loan, pledge or grant any rights with respect to any
shares of Common Stock, any options or warrants to purchase any shares of Common
Stock, or any securities convertible into or exchangeable for any shares of
Common Stock now owned or hereafter acquired directly by the Stockholder or with
respect to which the Stockholder has or hereafter acquires the power of
disposition.
"Losses" shall have the meaning given in Section 8.1.
"ODC" shall have the meaning given in the Preamble.
"Original Agreement" shall have the meaning given in the first Whereas
Clause.
"Preferred Stock" shall have the meaning given in the fifth Whereas
Clause.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means any prospectus included in a Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by any
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
"Register," "Registered" and "Registration," whether or not
capitalized, mean and refer to a registration effected by preparing and filing a
Registration Statement in compliance with the Securities Act and applicable
rules and regulations thereunder, and the declaration or ordering of the
effectiveness of such Registration Statement.
"Registrable Securities" means any shares of IPO Class A Common Stock
and any shares of Class A Common Stock issued or issuable upon (a) conversion of
shares of Class B Common Stock or Class C Common Stock issuable upon exercise of
the Warrant or conversion of the Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock or Series E Preferred Stock, or (b) exercise of
the Warrant; provided, however, that the shares of Class A Common Stock that are
Registrable Securities shall cease to be Registrable Securities (x) upon the
consummation of any sale of such shares pursuant to (i) an effective
Registration Statement under the Securities Act or (ii) Rule 144, (y) at such
time as such shares of Class A Common Stock (which are issued or which may
become issued upon conversion, exchange or exercise of any other security)
become eligible for sale under Rule 144(k) under the Securities Act and (z) with
respect to any Holder, on the first date when all of the Registrable Securities
then held by such Holder are eligible for sale during a single three month
period under Rule 144.
"Registration Expenses" shall have the meaning given in Section 7.
"Registration Statement" means any Registration Statement and any
additional Registration Statement, including (in each case) the Prospectus,
amendments and supplements to such Registration Statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference in such Registration Statement to be filed
pursuant to the terms of this Agreement.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, as amended.
"Series B Preferred Stock" shall have the meaning given in the fifth
Whereas Clause.
"Series C Preferred Stock" shall have the meaning given in the fifth
Whereas Clause.
"Series D Preferred Stock" shall have the meaning given in the fifth
Whereas Clause.
"Series E Preferred Stock" shall have the meaning given in the fifth
Whereas Clause.
"Stockholder" shall have the meaning given in the Preamble.
"Stockholders' Agreement" means the Amended and Restated Stockholders'
Agreement of even date herewith by and among the Company, AOL and ODC.
"Subsidiary" shall have the meaning given in the Stockholders'
Agreement.
"Underwritten Registration or Underwritten Offering" means a
registration in connection with which securities of the Company are sold to an
underwriter for reoffering to the public pursuant to an effective Registration
Statement.
"Warrant" shall have the meaning given in the seventh Whereas Clause.
Section 2. "Piggy-Back" Registrations
Section 2.1 If at any time after the IPO the Company shall determine to
register for its own account or the account of others under the Securities Act
(including (i) in connection with a public offering by the Company other than
the IPO or (ii) a demand for registration made by any stockholder of the Company
including any of the parties hereto) any of its equity securities (other than on
Form S-4 or Form S-8 or their then equivalents relating to shares of Common
Stock to be issued solely in connection with any acquisition of an entity or
business or shares of Common Stock issuable in connection with stock option or
other employee benefit plans) it shall send to each Holder written notice of
such determination and if, within 30 days after receipt of such notice, such
Holder shall so request in writing, the Company shall use its best efforts to
include in such Registration Statement all or any part of the Registrable
Securities such Holder requests to be registered.
Section 2.2 If, in connection with any offering described in Section
2.1 of this Agreement involving an underwriting of common stock to be issued by
the Company, the managing underwriter shall impose a limitation on the number of
shares of such common stock which may be included in the Registration Statement
because in its judgment, such limitation is necessary to effect an orderly
public distribution, then, in the discretion of such managing underwriter, the
Company shall include in such Registration Statements only such portion of the
Registrable Securities with respect to which such Holders have requested
inclusion pursuant hereto as such limitation permits after the inclusion of all
shares of common stock to be registered by the Company for its own account. Any
exclusion of Registrable Securities shall be made pro rata among such Holders
seeking to include such shares, in proportion to the number of such shares
sought to be included by such Holders.
Section 3. "Demand" Registrations
Section 3.1 At any time commencing at least 180 days after the
effective date of any registration statement covering the IPO, each Holder (a
"Demand Holder") may, from time to time, make a written request (each a "Demand
Request") for registration under the Securities Act (a "Demand Registration") of
all or part of the Registrable Securities held by such Holder; provided,
however, that the Registrable Securities requested to be registered shall, on
the date that the Demand Request is delivered, (i) constitute at least one
percent (1%) of the shares of Common Stock outstanding, which shall include all
shares of Common Stock issuable upon conversion or exchange of all then
outstanding Preferred Stock, or (ii) have an aggregate minimum market value of
at least $50,000,000 before calculation of underwriting discounts and
commissions. Each Demand Request shall specify the number of Registrable Shares
proposed to be sold by such Demand Stockholder.
Section 3.2 Within 15 days after receipt of each Demand Request, the
Company shall give written notice of such Demand Request to all non-requesting
Holders and shall use its best efforts to cause a Registration Statement
covering such of the Registrable Securities as may be requested by any Holders
thereof (including the Holder or Holders giving the initial notice of intent to
offer) to be filed with the Commission not later than 120 days after receipt of
a Demand Request (the "Demand Filing Date") and shall use all commercially
reasonable efforts to cause the same to be declared effective by the Commission
as promptly as practicable after such filing. Both the Demand Request and any
request to join in such Demand Request shall be considered a single Demand
Request.
Section 3.3 Notwithstanding any other provision set forth in this
Section 3, no Holder shall be entitled to deliver a Demand Request within 90
days after the effectiveness of any Registration Statement filed (i) by the
Company pursuant to an Underwritten Offering by the Company other than the IPO
or (ii) on behalf of any Demand Holder or any other Holder of demand
registration rights with respect to the Common Stock.
Section 3.4 The Company may defer the filing (but not the preparation)
of a Registration Statement required by this Section 3 until a date not later
than 120 days after the Demand Filing Date if:
(a) at the time the Company receives the Demand Request, there
is (i) material non-public information regarding the Company which the
Board reasonably determines not to be in the Company's best interest to
disclose and which the Company is not otherwise required to disclose,
or (ii) there is a significant business opportunity (including but not
limited to the acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer
or other similar transaction) available to the Company which the Board
reasonably determines not to be in the Company's best interest to
disclose; or
(b) prior to receiving the Demand Request, the Board had
determined to effect an Underwritten Offering and the Company had taken
substantial steps and is proceeding with reasonable diligence to effect
such offering.
A deferral of the filing of a Registration Statement pursuant to this Section
3.5 shall be lifted, and the requested Registration Statement shall be filed
forthwith, if, (x) in the case of a deferral pursuant to clause (a)(i), the
material non-public information is made public by the Company, (y) in the case
of a deferral pursuant to clause (a)(ii), the significant business opportunity
is disclosed by the Company or is terminated, or (z) in the case of a deferral
pursuant to clause (b), the proposed registration for the Company's account is
abandoned. In order to defer the filing of a registration statement pursuant to
this Section 3.5, the Company shall promptly (but in any event within 10 days),
upon determining to seek such deferral, deliver to each Demand Holder a
certificate signed by an executive officer of the Company stating that the
Company is deferring such filing pursuant to this Section 3.5 and an
approximation of the anticipated delay. Within 20 days after receiving such
certificate, the holders of a majority of the Registrable Securities held by the
Demand Holder and each other Holder and for which registration was previously
requested may withdraw such Demand Request by giving written notice to the
Company.
Section 4. Registration Procedures
Whenever any Holder has requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration of such Registrable Securities and in furtherance
thereof the Company shall:
(a) prepare and file with the Commission on any appropriate
form under the Securities Act with respect to such Registrable
Securities and use its best efforts to cause such Registration
Statement to become effective;
(b)(i) prepare and file with the Commission such amendments,
including post-effective amendments and supplements to the Registration
Statement as may be necessary to keep the Registration Statement
continuously effective as to the applicable Registrable Securities for
a period of not less than 180 days (or (1) such lesser period as is
necessary for the underwriters in an underwritten offering to sell
unsold allotments or (2) such longer period as may be commercially
reasonable if such Registration Statement is for a shelf registration
conducted pursuant to the provisions of Rule 415 (or any similar
provisions then in force) promulgated under the Securities Act); (ii)
cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and, as so supplemented or amended, to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; (iii) respond as promptly as
possible to any comments received from the Commission with respect to
the Registration Statement or any amendment thereto and, as promptly as
possible, provide the Holders true and complete copies of all
correspondence from and to the Commission relating to the Registration
Statement; and (iv) comply in all material respects with the provisions
of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration
Statement during the applicable period in accordance with the intended
methods of disposition by the Stockholders thereof set forth in the
Registration Statement as so amended or in such Prospectus as so
supplemented;
(c) (i) furnish to the Holders of Registrable Securities to be
sold, their counsel and any managing underwriters, copies of all such
documents proposed to be filed, which documents (other than those
incorporated by reference) will be subject to the review of such
Stockholders, their counsel and such managing underwriters, and (ii)
cause its officers and directors, counsel and independent certified
public accountants to respond to such inquiries as shall be necessary,
in the reasonable opinion of respective counsel to such Holders and
such underwriters, to conduct a reasonable investigation within the
meaning of the Securities Act;
(d) notify the Holders of Registrable Securities to be sold,
their counsel and any managing underwriters as promptly as possible
(and in the case of (i), below, not less than five (5) days prior to
such filing) and confirm such notice in writing no later than one (1)
Business Day following the day:
(i) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is
proposed to be filed;
(ii) when the Commission notifies the Company whether
there will be a "review" of such Registration Statement and
whenever the Commission comments in writing on such
Registration Statement;
(iii) when the Registration Statement or any
post-effective amendment thereto has become effective;
(iv) of any request by the Commission or any other
Federal or state governmental authority for amendments or
supplements to the Registration Statement or Prospectus or for
additional information;
(v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement covering any or all of the Registrable Securities or
the initiation of any Proceedings for that purpose;
(vi) when any of the representations and warranties
of the Company contained in any agreement (including any
underwriting agreement) contemplated hereby shall cease to be
true and correct in all material respects;
(vii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose;
and
(viii) of the occurrence of any event that makes any
statement made in the Registration Statement or Prospectus or
any document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires
any revisions to the Registration Statement, Prospectus or
other documents so that, in the case of the Registration
Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(e) use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the
effectiveness of the Registration Statement or (ii) any suspension of
the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment;
(f) if requested by any managing underwriter, if any
Registrable Securities are to be sold in connection with an
Underwritten Offering, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement
such information as the Company reasonably agrees should be included
therein and (ii) thereafter make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable;
(g) furnish to each Holder of Registrable Securities to be
sold, their counsel and any managing underwriters, without charge, at
least one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules, all
documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested by such Person
(including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission;
(h) promptly deliver to each Holder of Registrable Securities
to be sold, their counsel, and any underwriters, without charge, as
many copies of the Prospectus or Prospectuses (including each form of
Prospectus) and each amendment or supplement thereto as such Persons
may reasonably request; and the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the
selling Stockholders and any underwriters in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto;
(i) prior to any public offering of Registrable Securities,
use its best efforts to register or qualify or cooperate with the
selling Holders, any underwriters and their counsel in connection with
the registration or qualification (or exemption from such registration
or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder or underwriter requests in writing,
to keep each such registration or qualification (or exemption
therefrom) effective for at least 180 days (or such shorter period as
the applicable Registration Statement shall be effective)and to do any
and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by a Registration Statement; provided, however, that the Company shall
not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where
it is not then so subject or subject the Company to any material tax in
any such jurisdiction where it is not then so subject;
(j) cooperate with the selling Holders and any managing
underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to
a Registration Statement, which certificates shall be free, to the
extent permitted by applicable law, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and
registered in such names as any such managing underwriters or
Stockholders may request at least two Business Days prior to any sale
of Registrable Securities;
(k) upon the occurrence of any event contemplated by Section
4(d)(viii) of this Agreement, as promptly as possible, prepare a
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, and file all other required documents so that, as thereafter
delivered, neither the Registration Statement nor such Prospectus will
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(l) use its best efforts to cause all Registrable Securities
relating to such Registration Statement to be listed on the securities
exchange, quotation system, market or over-the-counter bulletin board
on which similar securities issued by the Company are then listed;
(m) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in Underwritten
Offerings) and take all such other actions in connection therewith
(including those reasonably requested by any managing underwriters in
order to expedite or facilitate the disposition of such Registrable
Securities, and those reasonably requested by the selling Holders
whether or not an underwriting agreement is entered into):
(i) make such representations and warranties to such
selling Holders and such underwriters as are customarily made
by issuers to underwriters in underwritten public offerings,
and confirm the same if and when requested;
(ii) in the case of an Underwritten Offering, obtain
and deliver copies thereof to the managing underwriters, if
any, of opinions of counsel to the Company and updates thereof
addressed to each such underwriter, in form, scope and
substance reasonably satisfactory to any such managing
underwriters and counsel to the selling Stockholders covering
the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be
reasonably requested by such counsel and underwriters;
(iii) immediately prior to the effectiveness of the
Registration Statement, and, in the case of an Underwritten
Offering, at the time of delivery of any Registrable
Securities sold pursuant thereto, obtain and deliver copies to
the selling Holders and the managing underwriters, if any, of
"cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and,
if necessary, any other independent certified public
accountants of any Subsidiary (as defined in the Stockholders'
Agreement) of the Company or of any business acquired by the
Company for which financial statements and financial data is,
or is required to be, included in the Registration Statement),
addressed to each selling Holder and each of the underwriters,
if any, in form and substance as are customary in connection
with Underwritten Offerings;
(iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and
procedures no less favorable to the selling Holders and the
underwriters than those set forth in Section 8 of this
Agreement (or such other provisions and procedures acceptable
to the managing underwriters and such selling Holders); and
(v) deliver such documents and certificates as may be
reasonably requested by the selling Holders, their counsel and
any managing underwriters to evidence the continued validity
of the representations and warranties made pursuant to clause
(i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company;
(n) make available for inspection by the selling Holders, any
representative of such Holders, any underwriter participating in any
disposition of Registrable Securities, and any attorney or accountant
retained by such selling Holder or underwriters, at the offices where
normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the officers, directors, agents
and employees of the Company and its subsidiaries to supply all
information in each case reasonably requested by any such Holder,
representative, underwriter, attorney or accountant in connection with
the Registration Statement; provided, however, that any information
that is determined in good faith by the Company to be of a confidential
nature at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such information
is required by court or administrative order or is necessary to respond
to inquiries of regulatory authorities; (ii) disclosure of such
information, in the opinion of counsel to such Person, is required by
law; (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by such
Person; or (iv) such information becomes available to such Person from
a source other than the Company and such source is not known by such
Person to be bound by a confidentiality agreement with the Company;
(o) comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to its
security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 not later than 45 days
after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts Underwritten Offering
and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after the
effective date of the Registration Statement, which statement shall
conform to the requirements of Rule 158;
(p) require each selling Holder to furnish to the Company
information regarding such Holder and the distribution of such
Registrable Securities as is required by law to be disclosed in the
Registration Statement, and the Company may exclude from such
registration the Registrable Securities of any such selling Holder who
unreasonably fails to furnish such information within a reasonable time
after receiving such request. If the Registration Statement refers to
any such Holder by name or otherwise as the holder of any securities of
the Company, then such Holder shall have the right to require (if such
reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force) the
deletion of the reference to such Holder in any amendment or supplement
to the Registration Statement filed or prepared subsequent to the time
that such reference ceases to be required; and
(q) not file a Registration Statement to which the Holder of a
majority of the Registrable Securities covered thereby or its counsel
or any managing underwriter shall reasonably object in writing within
three (3) Business Days of their receipt thereof.
Section 5. Lock-Up Agreement
Each Holder agrees, if such Holder is so requested by the managing
underwriter in the IPO, to enter into a Lock-Up Agreement, provided that the
Lock-Up Period required therein shall not exceed 180 days.
Section 6. Stockholder Covenants
Each Holder hereby covenants and agrees that:
(a) it will not sell any Registrable Securities under the
Registration Statement until it has received notice from the Company
that such Registration Statement and any post-effective amendments
thereto have become effective;
(b) it and its officers, directors or Affiliates (as defined
in the Stockholders' Agreement), if any, will comply with the
Prospectus delivery requirements of the Securities Act as applicable to
them in connection with sales of Registrable Securities pursuant to a
Registration Statement;
(c) upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 4(d)(iv), (v),
(vi), (vii) and (viii) of this Agreement, such Holder will forthwith
discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until
it is advised in writing (the "Advice") by the Company that the use of
the applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such
Prospectus or Registration Statement.
Section 7. Registration Expenses
Except to the extent limited by the applicable state law, all fees and
expenses incident to the performance of or compliance with this Agreement by the
Company shall be borne by the Company whether or not pursuant to an Underwritten
Offering and whether or not any Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to any
Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with any securities exchange or market on which Registrable
Securities are required hereunder to be listed, and (B) in compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel for the Stockholders in connection with Blue Sky
qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, determine)); (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities and of printing Prospectuses if the printing of
Prospectuses is requested by the managing underwriters, if any; (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company; (v) Securities Act liability insurance, if the Company desires such
insurance; (vi) fees and expenses of all other Persons retained by the Company
in connection with the consummation of the transactions contemplated by this
Agreement; and (vii) all of the internal expenses of the Company incurred in
connection with the consummation of the transactions contemplated by this
Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties, the expense of any
annual audit, the fees and expenses incurred in connection with the listing of
the Registrable Securities on any securities exchange as required hereunder (all
such expenses being referred to herein as "Registration Expenses"); provided,
however, that except as expressly set forth herein, in no event shall
Registration Expenses include any underwriting discounts, commissions, or fees
attributable to the sale of the Registrable Securities or any counsel,
accountants or other persons retained by the Holders incurred in connection with
the consummation of the transactions contemplated by this Agreement.
Section 8. Indemnification and Contribution
Section 8.1 Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder and their agents, brokers, investment advisors and employees of each
of them and each underwriter of the Registrable Securities and their officers,
directors, affiliates, partners and any broker or dealer through whom such
shares may be sold and each Person, if any, who controls (within the meaning of
Section 15 of the Securities Act) such Holder or any such underwriter, to the
fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, costs of
preparation and reasonable attorneys' fees) and expenses (collectively,
"Losses"), as incurred, arising out of or relating to any untrue or alleged
untrue statement of a material fact contained in any Registration Statement, any
Prospectus or any form of Prospectus or in any amendment or supplement thereto
or in any preliminary Prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or form
of Prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading (in the case of any Prospectus or form of
Prospectus or supplement thereto, in light of the circumstances under which they
were made), except to the extent, but only to the extent, that such untrue
statements or omissions are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for use therein,
which information was reasonably relied on by the Company for use therein or to
the extent that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use in any
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto. The Company shall notify the Holders promptly
of the institution, threat or assertion of any Proceeding of which the Company
is aware in connection with the transactions contemplated by this Agreement.
Section 8.2 Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, the directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses (as
determined by a court of competent jurisdiction in a final judgment not subject
to appeal or review) arising solely out of or based solely upon any untrue
statement of a material fact contained in any Registration Statement, any
Prospectus, or any form of Prospectus, or arising solely out of or based solely
upon any untrue statement or omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading to the
extent, but only to the extent, that such untrue statement or omission is
contained or omitted, as the case may be, in any information so furnished in
writing by such Holder to the Company specifically for inclusion in the
Registration Statement or such Prospectus and that such information was
reasonably relied upon by the Company for use in the Registration Statement,
such Prospectus or such form of Prospectus or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in the Registration Statement, such
Prospectus or such form of Prospectus or in any amendment or supplement thereto.
In no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
Section 8.3 Conduct of Indemnification Proceedings.
(a) If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an "Indemnified Party"), such
Indemnified Party promptly shall notify the Person from whom indemnity
is sought (the "Indemnifying Party") in writing, and the Indemnifying
Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations
or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further
review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
(b) An Indemnified Party shall have the right to employ
separate counsel in any such Proceeding and to participate in the
defense thereof, provided, however, the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; or (2) the Indemnifying Party shall have failed
promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (3) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel
at the reasonable expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense thereof and such
counsel shall be at the reasonable expense of the Indemnifying Party).
The Indemnifying Party shall not be liable for any settlement of any
such Proceeding effected without its written consent, which consent
shall not be unreasonably withheld. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such Proceeding.
(c) All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party,
as incurred, within ten (10) Business Days of written notice thereof to
the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the Indemnifying Party may require such
Indemnified Party to undertake to reimburse all such fees and expenses
to the extent it is finally judicially determined that such Indemnified
Party is not entitled to indemnification hereunder).
Section 8.4 Contribution.
(a) If a claim for indemnification under Section 8.1 or 8.2 is
unavailable to an Indemnified Party because of a failure or refusal of
a governmental authority to enforce such indemnification in accordance
with its terms (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified
Party as a result of such Losses, in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party and Indemnified
Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission of
a material fact, has been taken or made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth herein, any
reasonable attorneys' or other reasonable fees or expenses incurred by
such party in connection with any Proceeding to the extent such party
would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such
party in accordance with its terms. In no event shall the liability of
any selling Holder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
Section 8, no Stockholder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the proceeds
actually received by such Stockholder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages
that such Stockholder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(c) The indemnity and contribution agreements contained in
this Section 8 are in addition to any liability that the Indemnifying
Parties may have to the Indemnified Parties.
Section 8.5 Rule 144. Following the IPO, the Company covenants that:
(a) it will file the reports required to be filed by the
Company under the Securities Act and the Exchange Act, so as to enable
the Holders to sell Registrable Securities pursuant to Rule 144 under
the Securities Act;
(b) it shall cooperate with any Holder in connection with any
sale, transfer or other disposition by such Holder of any Registrable
Securities pursuant to Rule 144 under the Securities Act;
(c) it will take such action as any Holder may reasonably
request, all to the extent required from time to time to enable such
Holder to sell its Common Stock without registration under the
Securities Act within the limitation of the exemptions provided by Rule
144 promulgated under the Securities Act, including providing any legal
opinions; and
(d) upon the request of any Holder, it shall deliver to such
Holder a written certification of a duly authorized officer as to
whether it has complied with such requirements.
Section 9. Term of Registration Rights.
The rights of Holders with respect to the registration rights granted
pursuant to this Agreement shall remain in effect, subject to the terms hereof,
so long as there are Registrable Securities or securities which are directly or
indirectly convertible or exchangable for Registrable Securities issued and
outstanding.
Section 10. Miscellaneous.
Section 10.1 Entire Agreement; Amendments. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, with
respect to such matters.
Section 10.2 Notices. Any and all notices or other communications or
deliveries required or permitted to be provided pursuant to this Agreement shall
be in writing and shall be deemed to have been received (a) upon hand delivery
(receipt acknowledged) or delivery by telex (with correct answer back received),
telecopy or facsimile (with transmission confirmation report) at the address or
number designated below (if delivered on a Business Day during normal business
hours where such notice is to be received), or the first Business Day following
such delivery (if delivered on a Business Day after normal business hours where
such notice is to be received) or (b) on the second Business Day following the
date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first occur.
The address for the Company shall be: America Online Latin America, Inc., ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇; Attention: Chief
Executive Officer; fax: (▇▇▇) ▇▇▇-▇▇▇▇. The addresses for each Holder shall be
maintained by the Company. Copies of all notices shall be sent to America Online
Latin America, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, ▇▇▇; Attention: General Counsel; fax: (▇▇▇) ▇▇▇-▇▇▇▇, or such other
address as may be designated in writing hereafter, in the same manner, by such
person.
Section 10.3 Remedies. In the event of a breach by the Company or by a
Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
Section 10.4 No Inconsistent Agreements. Neither the Company nor any of
its Subsidiaries has, as of the date hereof, nor shall the Company or any of its
Subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any of its Subsidiaries has previously entered into any
agreement granting any registration rights with respect to any of its securities
to any Person. Without limiting the generality of the foregoing, the Company
shall not grant to any Person the right to request the Company to register any
securities of the Company under the Securities Act unless the rights so granted
are subject in all respects to the prior rights in full of the Holders, and are
not otherwise in conflict or inconsistent with the provisions of this Agreement.
Section 10.5 Amendments and Waivers. No provision of this Agreement may
be waived or amended except in a written instrument signed, in the case of an
amendment, by the Company and the Holders; or, in the case of a waiver, by the
party against whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter. Notwithstanding the
foregoing, no such amendment shall be effective to the extent that it applies to
less than all of the Holders. The Company shall not offer or pay any
consideration to a Holder for consenting to such an amendment or waiver unless
the same consideration is offered to each Holder and the same consideration is
paid to each Holder which consents to such amendment or waiver.
Section 10.6 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties. The rights of each Holder hereunder, including the right to have
the Company register for resale Registrable Securities in accordance with the
terms of this Agreement, shall be automatically assignable by each Holder
together with the Registrable Security, or the securities into which such
Registrable Securities are convertible or exchangeable into, to which such
rights relate if: (a) the Holder agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (i) the name and address of such transferee or assignee, and
(ii) the securities with respect to which such registration rights are being
transferred or assigned, (c) following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and applicable state securities laws, (d) the transferee or
assignee agrees in writing with the Company to be bound by all of the provisions
of this Agreement, and (e) such transfer shall have been made in accordance with
the applicable requirements of any agreement applicable to the transfer of such
shares, including, without limitation, the Stockholders' Agreement. The rights
to assignment shall apply to the Holders (and to subsequent) successors and
assigns.
Section 10.7 No Third-Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective successors and
permitted assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
Section 10.8 Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
Section 10.9 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
Section 10.10 Governing Law. This Agreement, and the rights and
liabilities of the parties hereunder, shall be governed by the substantive laws
of the State of Delaware, USA without giving effect to its rules relating to
conflict of laws. Each party hereto irrevocably consents to the exclusive
jurisdiction of the state and federal courts located in the State of Delaware
for all disputes arising under or related to this Agreement, which are subject
to litigation hereunder, and to service of process in any jurisdiction in any
such action by means of notice delivered pursuant to Section 10.2 hereof;
provided, however to permit a party either to enforce a judgment or to seek
injunctive relief, each party also irrevocably consents to the jurisdiction of
the courts in the place where such judgment enforcement or injunctive relief is
sought. Each party waives any objection it otherwise may have to the personal
jurisdiction and venue of the courts designated in this Section 10.10.
Notwithstanding the foregoing, for so long as a party is an entity organized
under the laws of the State of Delaware, injunctive relief may be sought against
that party only in the State of Delaware.
Section 10.11 Counterparts; Facsimiles. This Agreement may be executed
and delivered in one or more counterparts, each of which shall be deemed to be
an original, and all of which when taken together shall constitute one and the
same instrument, and shall become effective when copies hereof, bearing the
signatures of each of the parties shall have been received by the Company, AOL
and ODC. Facsimile signatures to this Agreement shall be effective if promptly
followed by the original signed Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
AMERICA ONLINE LATIN AMERICA, INC.
By:
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Name:
Title:
AMERICA ONLINE, INC.
By:
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Name:
Title:
ASPEN INVESTMENTS LLC
By:
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Name:
Title:
ATLANTIS INVESTMENTS LLC
By:
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Name:
Title:
Amended and Restated Registration Rights Agreement