EXHIBIT 7.0
VOTING AGREEMENT
Voting Agreement, dated as of March 8, 2002 (this "Agreement"), by and
among AOL Time Warner Inc. ("AOLTW"), America Online, Inc.(the "AOL
Stockholder"), Aspen Investments LLC ("Aspen"), Atlantis Investments LLC
("Atlantis")(each of the above parties, a "Stockholder", and, collectively, the
"Stockholders").
WHEREAS, the 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, 2001
(the "Note Purchase Agreement") providing for the purchase by AOLTW or its
permitted 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);
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 agrees as follows:
ARTICLE I: REPRESENTATIONS AND WARRANTIES
1.1 AOL / ▇▇▇▇▇▇▇▇ Share Ownership and Voting Control. All of the capital
stock of the Company record and beneficially owned by the AOL Stockholder as of
the date hereof (collectively, the "AOL Shares"; together with all of the
capital stock of the Company acquired after the date hereof by the AOL
Stockholders, the "AOL Subject Shares") are set forth opposite such
Stockholder's name on Exhibit A. All of the capital stock of the Company record
and beneficially owned by Aspen ("Aspen Shares") and Atlantis ("Atlantis
Shares") as of the date hereof (collectively, the "Aspen/Atlantis Shares";
together with all of the capital stock of the Company acquired after the date
hereof by Aspen or Atlantis or their affiliates, the "Aspen/Atlantis Subject
Shares"; together with the AOL Subject Shares, the "Subject Shares") are set
forth opposite such Stockholder's name on Exhibit A. The AOL Stockholder has
sole voting power over, and has sole beneficial ownership of, the AOL Shares,
Aspen and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ have shared voting power over and shared
beneficial ownership of the Aspen Shares, and Atlantis and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
have shared voting power over and shared beneficial ownership of the Atlantis
Shares, in each case, free and clear of all liens, encumbrances, options, rights
of first refusal and other similar rights and restrictions, other than as set
forth under this Agreement, the Amended and Restated Stockholders' Agreement,
dated as of March 30, 2001, to which the Company, the AOL Stockholder, Aspen and
Atlantis are parties, the Amended and Restated Stockholders' Agreement, dated as
of March 30, 2001, to which the Company, Banco Itau, S.A., Banco ▇▇▇▇▇▇, ▇.▇.,
Banco Itau, S.A.--Cayman Branch, Itau Bank Limited, and for limited purposes,
the AOL Stockholder, Aspen, and Atlantis are parties, and the Company's Restated
Certificate of Incorporation.
1.2 Power; Authority; Validity of Agreement. Each Stockholder represents
and warrants 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 Stockholder enforceable against such Stockholder 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
Stockholder of this Agreement does not and will not (i) require such Stockholder
to obtain any consent or approval from any Governmental Authority or third-party
or (ii) conflict with such Stockholder's organizational documents.
ARTICLE II: VOTING OF SHARES
2.1 Voting Obligations. Subject to the satisfaction (or waiver in writing)
of each of the conditions set forth in Section 2.2, each Stockholder shall: (a)
appear, in person or by proxy, or cause any other holder of record of any
applicable Subject Shares owned beneficially by such Stockholder 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 stockholders of the Company (currently
contemplated to be the Company's annual meeting of stockholders 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, 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 (iii) the filing of
a Certificate of Elimination in respect of the Series F Preferred Stock after
the filing of the Charter Amendments and (iv) any proposal which is necessary
under any foreign, federal, state or local statute or any rule or regulation of
any Governmental Authority or national securities exchange to carry into effect
the purpose and intent of the Note Purchase Agreement (the matters described in
the foregoing clauses, (i) through (iv), the "Covered Matters") and (b) vote, or
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. Each
Stockholder shall also vote against, and cause the Record Holder to vote
against, and refrain, and cause the Record Holder to refrain, from executing and
delivering written consents in favor of, any proposal which is contrary to or
inconsistent with any Covered Matter.
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: (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 preventing 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 material Federal, state, local or
foreign statute, rule or regulation shall have been enacted which prohibits,
restricts or delays the filing of the Charter Amendments or the consummation of
the transactions contemplated by the Note Purchase Agreement, the Notes or this
Agreement; and (d) the Charter Amendments, the Note Purchase Agreement, the
Notes and other related agreements shall be substantially in the form as such
Exhibits attached to the Note Purchased Agreement, and no default by any party
thereto that is material to such Stockholder shall have occurred.
2.3 Transfer of Ownership. In the event that any Stockholder intends to
transfer ownership 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, in addition
to any other existing restrictions, such Stockholder shall cause the transferee
to agree, by executing and delivering to the other parties hereto a joinder
agreement in form and substance satisfactory to each of the Stockholders, to
become a party to this Agreement from and after the time such transfer is
effected.
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.
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 Expenses and Costs. All expenses and costs incurred in connection with
any dispute, controversy, or claim arising out of or relating to this Agreement,
including but not limited to, reasonable counsel and consultant fees, shall be
paid by the non-prevailing party.
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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
AMERICA ONLINE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial
Officer
ASPEN INVESTMENTS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
ATLANTIS INVESTMENTS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
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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AOL Time Warner None
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America Online, Inc 199,662,294 Class B Preferred Stock
62,848,124 Class A Common Stock
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Aspen Investments LLC 55,454,220 Class C Preferred Stock
2,000,000 Class A Common Stock
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Atlantis Investments LLC 57,670,886 Class C Preferred Stock
2,000,000 Class A Common Stock
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Attachment 1
Amendment to Restated Certificate of Incorporation
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