Exhibit 8
STOCK PURCHASE AGREEMENT
BY AND AMONG
AMERICA ONLINE LATIN AMERICA, INC.,
AMERICA ONLINE, INC.,
ASPEN INVESTMENTS LLC,
ATLANTIS INVESTMENTS LLC,
and
BANCO ITAU, S.A. - CAYMAN BRANCH
Dated as of March 30, 2001
AMERICA ONLINE LATIN AMERICA, INC.
Stock Purchase Agreement
Dated as of March 30, 2001
Table of Contents
Page
ARTICLE I - SALE OF THE SHARES.................................................1
1.01 Initial Closing..............................................1
1.02 Additional Closings..........................................2
1.03 No Fractional Shares.........................................2
1.04 Funding Notice...............................................3
1.05 Reservation of Shares........................................3
1.06 Designation of Terms of Series D and Series E Preferred
Stock........................................................3
1.07 Independent Obligations......................................3
ARTICLE II - CONDITIONS TO OBLIGATIONS AT THE INITIAL CLOSING..................4
2.01 Conditions to Purchasers' Obligations at the Initial Closing.4
2.02 Conditions to the Company's Obligations to each Purchaser at
the Initial Closing..........................................5
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................6
3.01 Organization; Authorization; No Conflict.....................6
3.02 Valid Issuance...............................................7
3.03 SEC Documents................................................7
3.04 Securities Law Compliance....................................8
3.05 Broker Fees..................................................8
3.06 Approvals and Consents.......................................8
3.07 No Prohibitions..............................................8
3.08 Amended Certificate..........................................8
ARTICLE IV - REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS..................9
4.01 Investment Representations...................................9
4.02 Organization; Authorization; No Conflict....................10
4.03 Brokers Fees................................................10
4.04 Disclosure of Information...................................10
4.05 Legends.....................................................10
4.06 Prior HSR Filings...........................................11
4.07 Approvals and Consents......................................11
4.08 No Prohibitions.............................................11
4.09 Banco Itau and BISA.........................................11
ARTICLE V - AFFIRMATIVE COVENANTS.............................................11
5.01 Certificate of Designation..................................11
5.02 Cooperation.................................................12
5.03 Reasonable Efforts..........................................12
ARTICLE VI - DEFAULT IN PAYMENTS..............................................12
6.01 Defaults by AOL.............................................12
6.02 Default by ODC..............................................13
6.03 Defaults by Itau............................................14
ARTICLE VII - DEFINITIONS.....................................................15
ARTICLE VIII - TERMINATION; SURVIVAL..........................................19
8.01 Termination by Mutual Consent..............................19
8.02 Effect of Termination and Abandonment.......................19
8.03 Termination by Expiry of Time...............................19
8.04 Survival of Representations and Warranties..................20
ARTICLE IX - MISCELLANEOUS....................................................20
9.01 No Waiver; Cumulative Remedies..............................20
9.02 Addresses for Notices.......................................20
9.03 Costs, Expenses and Taxes...................................22
9.04 Binding Effect; Assignment..................................22
9.05 Prior Agreements............................................23
9.06 Severability................................................23
9.07 Governing Law...............................................23
9.08 Headings....................................................23
9.09 Counterparts................................................23
9.10 Further Assurances..........................................23
9.11 Waiver of Preemptive Rights.................................24
9.12 Interpretation..............................................24
9.13 Amendments, Waivers and Consents............................24
EXHIBITS
A List of Purchasers
B Form of Certificate of Designation
C Form of Restated AOL/ODC Stockholders' Agreement
D Form of Restated AOL/ODC Registration Rights Agreement
E Form of Restated Itau Registration Rights and Stockholders' Agreement
F Form of Voting Agreement
G Form of Restated Certificate
H Form of Legal Opinion
I Form of Cross Receipt to be executed by the Company and each Purchaser
SCHEDULES
I List of Company SEC Documents
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this
30th day of March, 2001 by and among America Online Latin America, Inc., a
Delaware corporation (the "Company"), America Online, Inc., a Delaware
corporation ("AOL"), Aspen Investments LLC, a Delaware limited liability company
("Aspen"), Atlantis Investments LLC, a Delaware limited liability company
("Atlantis," and together with Aspen, "ODC") and Banco Itau, S.A. - Cayman
Branch, a Brazilian Sociedade Anonima ("Banco Itau," and together with Aspen,
Atlantis and AOL, each, a "Purchaser" and collectively, the "Purchasers").
RECITALS:
WHEREAS, the Company has proposed that it issue and sell to (i) AOL,
that number of shares (the "Series D Shares") of the Company's Series D
Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series D
Preferred Stock"), as is obtained by dividing (1) $66,338,075 by (2) $4.6875
(the "Stipulated Price"), (ii) Aspen, that number of shares (the "Aspen Series E
Shares") of the Company's Series E Redeemable Convertible Preferred Stock, $.01
par value per share (the "Series E Preferred Stock"), as is obtained by dividing
(1) $31,898,525 by (2) the Stipulated Price, (iii) Atlantis, that number of
shares (the "Atlantis Series E Shares" and together with the Aspen Series E
Shares, the "Series E Shares") of Series E Preferred Stock as is obtained by
dividing (1) $31,898,525 by (2) the Stipulated Price, and (iv) Banco Itau, that
number of shares (the "Banco Itau Class A Shares") of the Company's Class A
Common Stock, $.01 par value per share (the "Class A Common Stock") as is
obtained by dividing (1) $19,864,875 by (2) the Stipulated Price; and
WHEREAS, AOL, ODC and Banco Itau wish to purchase, respectively, the
Series D Shares, the Series E Shares and the Banco Itau Class A Shares
(collectively, the "Shares") from the Company.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company agrees to issue and
sell to the Purchasers, and the Purchasers agree to purchase from the Company,
the Shares, subject to the terms and conditions set forth below.
ARTICLE I
SALE OF THE SHARES
1.01 Initial Closing. Subject to the satisfaction of the conditions
specified in Article II hereof, the Company agrees to issue and sell to each
Purchaser at the Initial Closing, and each Purchaser, severally but not jointly
(except that the obligations hereunder of Aspen and Atlantis shall be joint and
several as to such two entities), agrees to purchase from the Company, a number
of Shares equal to the dollar amount with respect to the Initial Closing set
forth opposite such Purchaser's name on Exhibit A hereto divided by the
Stipulated Price. The Shares purchased by the Purchasers at the Initial Closing
shall be referred to herein as the "Initial Shares". The purchase and sale of
the Initial Shares shall take place at a closing (the "Initial Closing") to be
held at 10:00 a.m. local time at the offices of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C. ("▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇., on April 2, 2001 or on the first Business Day thereafter
in which all of the conditions set forth herein have been met, or at such other
location, or on such other date and at such other time as may be mutually agreed
upon by the Company and all of the Purchasers. At the Initial Closing, the
Company will issue and deliver certificates evidencing the Initial Shares
against payment of the full purchase price therefor by wire transfer of
immediately available funds to an account designated by the Company.
1.02 Additional Closings.
A. The Company shall, on closings to be held on June 1, 2001 and August
1, 2001 (each, an "Additional Closing"), issue and sell to each of AOL, Aspen
and Atlantis, and each of AOL, Aspen and Atlantis, severally but not jointly
(except that the obligations hereunder of Aspen and Atlantis shall be joint and
several as to such two entities), agrees to purchase from the Company, a number
of Shares equal to the dollar amount with respect to such Additional Closing set
forth opposite such Purchaser's name on Exhibit A hereto divided by the
Stipulated Price. The obligations of the Company to sell, and of such Purchasers
to purchase, such number of Shares at the Additional Closings are irrevocable
and unconditional. If prior to any Additional Closing the Amended Certificate
has been filed and accepted by the Delaware Secretary of State, then at such
Additional Closing (i) the Company shall sell to AOL, and AOL shall buy from the
Company, Series B Preferred Stock, rather than Series D Preferred Stock, on the
terms specified in this Agreement, and (ii) the Company shall sell to each of
Aspen and Atlantis, and each of Aspen and Atlantis shall buy from the Company,
Series C Preferred Stock, rather than Series E Preferred Stock, on the terms
specified in this Agreement. The Shares purchased by such Purchasers at each
Additional Closing shall be referred to herein as the "Remaining Shares".
B. Each Additional Closing shall be held at 10:00 a.m. local time at
the offices of ▇▇▇▇▇ ▇▇▇▇▇ on the dates listed above, or at such other location,
on such other dates and at such other times as may be mutually agreed upon by
the Company, AOL, Aspen and Atlantis. At each Additional Closing, the Company
will issue and deliver certificates evidencing the Remaining Shares to be
purchased at such Additional Closing against payment of the full purchase price
therefor by wire transfer of immediately available funds to an account
designated by the Company.
1.03 No Fractional Shares. No certificates or scrip representing
fractional Shares shall be issued upon payment of the respective dollar amounts
to be paid by a Purchaser, and any such fractional Share interests will not
entitle the owner thereof to vote or to any other rights of a shareholder of the
Company. Notwithstanding any other provision of this Agreement, each Purchaser
who would otherwise have been entitled to receive a fraction of a Share shall
receive from the Company, in accordance with the provision of this Article I, a
cash payment, in United States dollars and without interest, in lieu of such
fractional Share. The Company shall determine the amount of the cash payment to
which each such Purchaser shall be entitled by multiplying the Stipulated Price
by the amount of the fractional Share interest to which such Purchaser is
entitled.
1.04 Funding Notice. Notwithstanding the foregoing, if the Special
Committee determines that the Company's capital requirements will exceed the
amount of funds required to be contributed at any scheduled closing hereunder,
the Company may, by written notice delivered to each of AOL, Aspen and Atlantis
not less than seven (7) Business Days prior to the date of the Initial Closing
or any Additional Closing, as the case may be (each, a "Funding Notice"),
require that AOL, Aspen and Atlantis purchase more than the dollar amount of
Shares otherwise scheduled to be purchased at the Initial Closing or any such
Additional Closing. Each Funding Notice shall set forth the dollar amount of the
Shares to be purchased by each of AOL, Aspen and Atlantis at the Initial Closing
or such Additional Closing, as applicable (which Shares shall be sold to each of
AOL, Aspen and Atlantis pro rata in proportion to their aggregate commitments
hereunder). In no event, however, may the aggregate amount required to be
purchased by any Purchaser at all closings hereunder exceed the aggregate
commitment of such Purchaser hereunder as set forth in the first recital
paragraph hereof. If any funding is made pursuant to any Funding Notice, the
amount so funded in excess of the amount otherwise required to be funded at such
closing shall be subtracted from the amount otherwise required to be funded at
the last Additional Closing.
1.05 Reservation of Shares. Except for redemptions of (i) Series D and
Series E Preferred Stock pursuant to Section 6 of the Certificate of
Designation, as defined below and (ii) Series B and Series C Preferred Stock
pursuant to Clause (c)(vi) of Article FOURTH of the Company's restated
certificate of incorporation (the "Restated Certificate"), the Company has
authorized and has reserved and covenants to continue to reserve, free and clear
of any Liens, preemptive rights and other preferential rights, a sufficient
number of its authorized but unissued shares of (i) Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
to satisfy the Company's obligations hereunder, (ii) Class B Common Stock, par
value $.01 per share (the "Class B Common Stock"), and Class A Common Stock to
satisfy the rights of conversion of the holders of the Series B Preferred Stock
and Series D Preferred Stock and (iii) Class C Common Stock, par value $.01 per
share (the "Class C Common Stock," and together with the Class B Common Stock
and the Class A Common Stock, the "Common Stock"), and Class A Common Stock to
satisfy the rights of conversion of the holders of the Series C Preferred Stock
and Series E Preferred Stock. Any shares of Common Stock, Series B Preferred
Stock and Series C Preferred Stock issuable upon conversion of the Shares are
herein referred to as the "Conversion Shares."
1.06 Designation of Terms of Series D and Series E Preferred Stock.
Prior to the Initial Closing, the Company shall file with the Secretary of State
of the State of Delaware a certificate of designation in substantially the form
of Exhibit B hereto (the "Certificate of Designation").
1.07 Independent Obligations. Except as provided herein, (i) the
obligations of each Purchaser hereunder is independent of the obligations of
each of the other Purchasers, and a breach or default by one Purchaser of its
obligations hereunder shall not relieve the other Purchasers of their
obligations to consummate the transactions contemplated at the Initial Closing
or any Additional Closing and (ii) no Purchaser shall have any liability or
obligation to the Company or any other Purchaser with respect to any breach or
default by another Purchaser of such other Purchaser's obligations hereunder.
ARTICLE II
CONDITIONS TO OBLIGATIONS AT THE INITIAL CLOSING
2.01 Conditions to Purchasers' Obligations at the Initial Closing. The
obligation of each Purchaser to purchase and pay for the Initial Shares to be
purchased by it at the Initial Closing is subject to the satisfaction, on the
date hereof, of each of the following conditions set forth in this Section 2.01,
except that the cross-receipt required under Section 2.01 (I) below will be
satisfied only on the date of the Initial Closing. These conditions are for each
Purchaser's sole benefit and may be waived (in whole or in part) by each
Purchaser provided that the waiver of any of the following conditions by such
individual Purchaser shall not constitute a waiver of such conditions by any
other Purchaser.
A. The representations and warranties of the Company set forth in
Article III hereof shall be true and correct in all material respects as of the
date hereof.
B. All covenants, agreements and conditions contained in this Agreement
to be performed by the Company on or prior to the date hereof shall have been
performed or complied with, except for the filing of the Certificate of
Designation, in all material respects.
C. The Company and the other Purchasers who are parties thereto shall
have duly executed and delivered to each such Purchaser an amendment and
restatement of the existing Stockholders' Agreement, dated as of August 7, 2000,
by and among the Company, AOL and Riverview Media Corp. ("Riverview"), as
amended, in substantially the form attached hereto as Exhibit C (the "Restated
AOL/ODC Stockholders' Agreement").
D. The Company and the other Purchasers who are parties thereto shall
have duly executed and delivered to each such Purchaser an amendment and
restatement of the existing Registration Rights Agreement, dated as of August 7,
2000, by and between the Company, AOL and Riverview, in substantially the form
attached hereto as Exhibit D (the "Restated AOL/ODC Registration Rights
Agreement").
E. The Company and the other Purchasers who are parties thereto shall
have duly executed and delivered to each such Purchaser an amendment to the
existing Registration Rights and Stockholders' Agreement, dated as of August 11,
2000, by and among the Company, AOL, Riverview, Banco Itau, Banco Itau, S.A., a
Brazilian Sociedade Anonima ("BISA"), Banco ▇▇▇▇▇▇, ▇.▇., a Brazilian Sociedade
Anonima ("BBSA") and Itau Bank Limited, a Cayman limited liability company
("Itau Bank"), in substantially the form attached hereto as Exhibit E (the
"Restated Itau Agreement").
F. The Company and the other Purchasers who are parties thereto shall
have duly executed and delivered to each such Purchaser a Voting Agreement, to
be dated the date hereof, by and among the Company, ODC and AOL (the "Voting
Agreement"), in substantially the form attached hereto as Exhibit F and which
shall include as an exhibit thereto the Amendment to the Restated Certificate,
in the form attached hereto as Exhibit G (the "Amended Certificate," and
together with the Restated AOL/ODC Stockholders' Agreement, the Restated AOL/ODC
Registration Rights Agreement, the Restated Itau Agreement , the Certificate of
Designation and the Voting Agreement, the "Related Agreements").
G. Each Purchaser shall have received all of the following materials or
each of the following documents shall have been delivered, prior to or on the
date hereof:
(i) A certified copy of the Restated Certificate, as amended
or restated to the date hereof.
(ii) A copy of the Restated By-laws of the Company which has
been certified by the Secretary or an Assistant Secretary of the
Company to be true, complete and correct;
(iii) A certificate of the Secretary or an Assistant Secretary
of the Company which shall certify the Company's resolutions of the
Board (and its committees and members) providing for the approval of
this Agreement and the Related Agreements, the names of the officers of
the Company authorized to sign this Agreement, the Related Agreements,
the certificates for the Shares and the other documents, instruments or
certificates to be delivered pursuant to this Agreement or the Related
Agreements by the Company or any of its officers, together with the
true signatures of such officers;
(iv) A Certificate of the Secretary of State of the State of
Delaware as to the due incorporation and good standing of the Company;
and
(v) A legal opinion from counsel to the Company, in the form
attached hereto as Exhibit H.
H. Each Purchaser shall have received a copy of the fairness opinion
delivered to the Financing Committee of the Board by ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, or another investment banking firm selected by the
Financing Committee of the Board in its sole discretion (the "Investment Bank").
I. A cross-receipt in the form attached hereto as Exhibit I, pursuant
to which the Company acknowledges receipt of the purchase price received from
each Purchaser in connection with the Initial Closing.
2.02 Conditions to the Company's Obligations to each Purchaser at the
Initial Closing. The obligation of the Company to issue and sell the Initial
Shares to be sold by it to each Purchaser at the Initial Closing is subject to
the satisfaction or waiver on the date hereof, of each of the following
conditions set forth in this Section 2.02, except that the cross-receipt
required under Section 2.02(E) below will be satisfied only on the date of the
Initial Closing:
A. The representations and warranties of each Purchaser set forth in
Article IV hereof shall be true and correct in all material respects as of the
date hereof.
B. All covenants, agreements and conditions contained in this Agreement
to be performed by each Purchaser on or prior to the date hereof shall have been
performed or complied with in all material respects.
C. Each Purchaser that is a party thereto shall have duly executed and
delivered the Restated AOL/ODC Stockholders' Agreement, the Restated AOL/ODC
Registration Rights Agreement, the Restated Itau Agreement and the Voting
Agreement
D. Each Purchaser shall have delivered an opinion of counsel to the
Company evidence, in form and substance reasonably satisfactory to the Company,
of its due authorization, execution and delivery of this Agreement and each of
the Related Agreements required to be signed by each Purchaser.
E. A cross-receipt in the form attached hereto as Exhibit I, pursuant
to which each Purchaser acknowledges receipt of the Initial Shares received from
the Company in connection with the Initial Closing.
The Company may not waive compliance with any of the foregoing conditions as to
any Purchaser without the express written consent of each other Purchaser;
provided, however, the Company shall not need the respective written consent of
any Purchaser that is then in default under this Section 2.02. Any such waiver
shall not be deemed a waiver of such condition or any other condition with
respect to any other Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each of the Purchasers as
follows:
3.01 Organization; Authorization; No Conflict. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company has full corporate power and
authority to enter into this Agreement and each of the Related Agreements. All
corporate and shareholder actions on the part of the Company and its
shareholders necessary for the execution of this Agreement and each of the
Related Agreements and the issuance and sale of the Shares and performance of
its obligations under this Agreement, each of the Related Agreements and the
other documents and instruments delivered by it pursuant to this Agreement have
been taken or will be taken prior to the Initial Closing. This Agreement is, and
each of the Related Agreements, when executed will be, a legal, valid and
binding obligation of the Company, enforceable against it in accordance with its
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and the availability or lack of availability of
specific performance and other equitable remedies. Neither the execution and
delivery of this Agreement and the Related Agreements, nor the issuance and sale
of the Shares, nor the consummation of any other transaction contemplated by
this Agreement or any of the Related Agreements, has constituted or resulted in
or will constitute or result in a default or violation of any term or provision
of the Company governing documents or any statutes, rules, regulations,
indentures, agreements or other instruments binding upon the Company, which
default or violation would have a material adverse effect on the Company or its
ability to consummate the transactions contemplated hereby.
3.02 Valid Issuance. The Shares have been reserved for issuance and,
when issued and paid for pursuant to the terms of this Agreement, will be duly
authorized and validly issued and outstanding, fully paid and nonassessable, and
free and clear of any and all Liens and preemptive and other similar rights,
except (i) with respect to Shares issued to AOL and/or ODC, as set forth in
Section 4.2 and Article 5 of the Restated AOL/ODC Stockholders' Agreement,
Article Fourth of the Restated Certificate, Section 5 of the Certificate of
Designation, and Article VI hereof, and (ii) with respect to Shares issued to
Itau, Section 10 of the Restated Itau Agreement. The Conversion Shares have been
reserved for issuance upon conversion of the Shares and, when issued upon
conversion thereof in accordance with the terms of the Certificate of
Designation, Restated Certificate or Amended Certificate, will be duly
authorized, validly issued and outstanding, fully paid and nonassessable, and
free and clear of any and all Liens and preemptive and other similar rights,
except with respect to Conversion Shares issued to AOL and/or ODC, as set forth
in Section 4.2 and Article 5 of the Restated AOL/ODC Stockholders' Agreement,
Article Fourth of the Restated Certificate, Section 5 of the Certificate of
Designation and Article VI hereof.
3.03 SEC Documents.
A. The Company has furnished or made available to each of the
Purchasers, or will furnish and make available each report, schedule, form and
definitive proxy statement, if any, filed by the Company with the SEC since
August 7, 2000 up to and including the date of the Initial Closing, which are
all the documents that the Company was or will be required to file (or otherwise
did file) with the SEC in accordance with Sections 13, 14 and 15(d) of the
Exchange Act prior to the date of the Initial Closing (collectively, the
"Company SEC Documents"). Attached hereto as Schedule I is a complete listing of
the Company SEC Documents as of the date hereof. As of their respective filing
dates, none of the Company SEC Documents (including all exhibits and schedules
thereto and documents incorporated by reference therein) contained or will
contain any untrue statement of a material fact or omitted or will omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and the Company SEC Documents complied or will comply when
filed, or in the case of registration statements, as of their respective
effective times, in all material respects with the then applicable requirements
of the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations promulgated by the SEC thereunder. To the actual knowledge of senior
management of the Company, none of the statements made in any such Company SEC
Documents is, or has been, required to be amended or updated under applicable
law (except for such statements as have been amended or updated in subsequent
filings prior to the date hereof).
B. The financial statements (including the notes thereto) of the
Company included or to be included in the Company SEC Documents, complied or
will comply as to form in all material respects with the then applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, were or will be prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods involved (except
as may have been indicated in the notes thereto) and fairly present or will
fairly present the financial position of the Company as at the dates thereof and
the results of its operations, stockholders' equity and cash flows for the
period then ended.
3.04 Securities Law Compliance. Assuming that the representations and
warranties of the Purchasers set forth in Section 4.01 hereof are true and
correct in all material respects, the offer and sale of the Shares made pursuant
to this Agreement will be exempt from the registration requirements of the
Securities Act.
3.05 Broker Fees. Except for fees to be paid by the Company to the
Investment Bank for services rendered by the Investment Bank in connection with
the transactions contemplated hereunder, there are, and following the Initial
Closing and each Additional Closing there shall be, no claims for brokerage
commissions, finders fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of the Company.
3.06 Approvals and Consents. The Company has obtained all necessary
corporate, shareholder and Board approvals (including the favorable
recommendation to the Board by the Special Committee of the Board) relating to
the consummation of the transactions contemplated hereby. In addition, the
Financing Committee of the Board has favorably recommended the consummation of
the transactions contemplated hereby to the Board. The Company has also obtained
all necessary consents of and made all required filings with any governmental
authority or agency or third party required to be obtained by the Company prior
to the Initial Closing under applicable law and relating to the consummation of
the transactions contemplated hereby, other than any consents or approvals
required pursuant to the provisions of the BAT Law which, if not obtained, would
not have a material adverse effect on the Company.
3.07 No Prohibitions. No temporary restraining order, preliminary or
permanent injunctions or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or provision challenging the
transactions contemplated hereby are in effect, nor is any proceeding brought by
an administrative agency or commission or other governmental authority or
instrumentality seeking any of the foregoing pending. In addition, no Federal,
state, local or foreign statute, rule or regulation has been enacted which
prohibits, restricts or delays the consummation of the transactions contemplated
by this Agreement and by the Related Agreements or any of the conditions to the
consummation of such transactions.
3.08 Amended Certificate and Certificate of Designation.
Notwithstanding the foregoing, each of the parties hereto acknowledges that the
issuance of the Series B Preferred Stock and Series C Preferred Stock hereunder
is subject to the requirement that the Amended Certificate is approved by the
required votes of the Board (and its committees and members) and stockholders of
the Company and that the Amended Certificate is filed with the Secretary of
State of the State of Delaware, and that the representations and warranties of
the Company in this Article III assume that such approvals will be obtained and
that the Amended Certificate will be filed and accepted by the Secretary of
State of the State of Delaware prior to the issuance of the Series B Preferred
Stock and Series C Preferred Stock hereunder. Each of the parties hereto also
acknowledges that the issuance of the Series D Preferred Stock and Series E
Preferred Stock hereunder is subject to the requirement that the Certificate of
Designation is filed with the Secretary of State of the State of Delaware, and
that the representations and warranties of the Company in this Article III
assume that the Certificate of Designation will be filed and accepted by the
Secretary of State of the State of Delaware prior to the issuance of the Series
D Preferred Stock and Series E Preferred Stock hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS
Each of the Purchasers represents and warrants to the Company
severally, but not jointly (except that the representations and warranties of
ODC are hereby made jointly and severally by Aspen and Atlantis as to such two
parties), as follows:
4.01 Investment Representations. Such Purchaser:
A. Is experienced in evaluating and investing in companies such as the
Company and can bear the economic risk of its investment in the Shares. It has
substantial experience in investing in and evaluating private placement
transactions of securities in companies similar to the Company and is capable of
evaluating the risks and merits of its investment in the Company and has the
capacity to protect its own interests.
B. Is acquiring the Shares for investment for its own account and not
with a view to, or for resale in connection with, any distribution thereof, and
it has no present intention of selling or distributing the Shares or any of the
Conversion Shares in contravention of the Securities Act. The Purchaser has not
been formed for the specific purpose of acquiring the Shares. Each acquisition
by a Purchaser of Shares hereunder shall constitute a confirmation of this
representation by such Purchaser.
C. Acknowledges that, because they have not been registered under the
Securities Act, the Shares it is purchasing and the underlying Conversion Shares
must be held indefinitely unless subsequently registered under the Securities
Act or an exemption from such registration is available. Each Purchaser
understands and agrees that (i) no U.S. or foreign Federal, state or local
governmental authority has made any finding or determination relating to the
fairness of the terms of the investment in the Company proposed hereunder and
the Shares have not been registered under the Securities Act and applicable
state or foreign securities laws, and, therefore, cannot be resold unless they
are subsequently registered under the Securities Act and applicable state and
foreign securities laws or unless an exemption from such registration is
available; (ii) if an exemption from registration is available, it may be
conditioned on various requirements including, but not limited to, the time and
manner of sale and the holding period for the Shares and the Conversion Shares,
whatever the case may be, and other requirements outside of the Company's or
such Purchaser's control, and which the Company is under no obligation to, and
which it may not be able to satisfy; (iii) such Purchaser may not resell or
otherwise dispose of all or any part of the Shares except as permitted by law
and all other regulations promulgated under the Securities Act and applicable
state and foreign securities laws; (iv) except as is expressly set forth in the
Restated AOL/ODC Registration Rights Agreement, with respect to AOL and ODC, and
the Restated Itau Agreement, with respect to Banco Itau, the Company does not
have any obligation to register the Shares under the Securities Act or any state
or foreign securities laws, and the Company has no present intention of
effecting any such registration; and, (v) without prejudice to the Company's
obligations pursuant Section 9.5 of the Restated Itau Agreement or Section 8.5
of the Restated AOL/ODC Registration Rights Agreement, Regulation S, Rule 144 or
Rule 144A under the Securities Act may not be available to such Purchaser as a
basis for exemption from registration of the Shares under the Securities Act.
4.02 Organization; Authorization; No Conflict. Such Purchaser is a
corporation, sociedade anonima or other limited liability entity duly organized
and validly existing under the laws of the jurisdiction of its organization and
is in good standing under such laws. Such Purchaser has full power and authority
to enter into this Agreement and each of the Related Agreements to which it is a
party. All corporate or other limited liability entity actions on the part of
such Purchaser necessary for the performance of its obligations under this
Agreement, each of the Related Agreements to which it is a party and the other
documents and instruments delivered by it pursuant to this Agreement have been
taken or will be taken prior to the Initial Closing. This Agreement is, and each
of the Related Agreements to which it is a party, when executed will be, a
legal, valid and binding obligation of such Purchaser, enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and the availability or lack of
availability of specific performance and other equitable remedies. Neither the
execution and delivery of this Agreement or the purchase of the Shares, nor the
consummation of any transaction contemplated by this Agreement, has constituted
or resulted in or will constitute or result in a default or violation of any
term or provision of any of such Purchaser's governing documents or any
statutes, rules, regulations, indentures, agreements or other instruments
binding upon such Purchaser.
4.03 Brokers Fees. Except for fees to be paid by the Company to the
Investment Bank for services rendered by the Investment Bank in connection with
the transactions contemplated hereunder, there are, and following the Initial
Closing and each Additional Closing there shall be, no claims for brokerage
commissions, finders fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of such Purchaser.
4.04 Disclosure of Information. Such Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Shares with the management of the Company.
4.05 Legends. Such Purchaser understands that the Shares and the
Conversion Shares, and any securities issued in respect of or in exchange for
the Shares or the Conversion Shares, may bear one or all of the following
legends:
A. "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE
OFFERED, PLEDGED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM."
B. Any legend required pursuant to any other agreement between the
Company and such Purchaser.
C. Any legend required by the "blue-sky" laws of any state to the
extent such laws are applicable to the Shares represented by the certificate so
legended.
4.06 Prior HSR Filings. Each of the Purchasers represents and warrants
that it (or, in the case of ODC and Banco Itau, its predecessor in title)
previously has made, on a timely basis, all required filings pursuant to the
pre-merger notification requirements of the HSR Act and, in the case of Banco
Itau's predecessor in title, previously has made timely notifications pursuant
to the BAT Law, in connection with the initial public offering by the Company of
its Class A Common Stock and such Purchasers' purchase of such shares therein.
Such Purchaser will make any required filing pursuant to the provisions of the
HSR Act and, if applicable, the BAT Law, in connection with the transactions
contemplated hereby.
4.07 Approvals and Consents. Each of the Purchasers represents and
warrants that it has obtained all necessary corporate, shareholder and Board of
Director approvals (or, if such Purchaser is not a corporation, all approvals
that are substantially similar to shareholder and Board of Director approvals)
relating to the consummation of the transactions contemplated hereby, and has
also obtained all necessary consents of and made all required filings with any
governmental authority or agency or third party required to be obtained by each
Purchaser prior to the Initial Closing under applicable law and relating to the
consummation of the transactions contemplated hereby.
4.08 No Prohibitions. No temporary restraining order, preliminary or
permanent injunctions or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or provision challenging the
transactions contemplated hereby are in effect, nor is any proceeding brought by
an administrative agency or commission or other governmental authority or
instrumentality seeking any of the foregoing pending. In addition, no Federal,
state, local or foreign statute, rule or regulation has been enacted which
prohibits, restricts or delays the consummation of the transactions contemplated
by this Agreement and by the Related Agreements or any of the conditions to the
consummation of such transactions.
In addition to the representations and warranties set forth in Sections
4.01 through 4.08 above, Banco Itau hereby represents and warrants as follows:
4.09 Banco Itau and BISA. For all intents and purposes, Banco Itau and
BISA are the same legal entity, and BISA is liable hereunder as if it were a
party to this Agreement for all liabilities, obligations and agreements of Banco
Itau hereunder.
ARTICLE V
AFFIRMATIVE COVENANTS
5.01 Certificate of Designation On or before seven (7) business days
after the date hereof, the Company shall file the Certificate of Designation
with the Secretary of State of the State of Delaware.
5.02 Cooperation. From and after the date of this Agreement, upon the
request of the Purchasers or the Company, the parties hereto shall execute and
deliver such instruments, documents and other writings and take all such further
actions as may be reasonably necessary or desirable to confirm and carry out and
to effectuate fully the intent and purposes of this Agreement and the issuance
and sale of the Shares pursuant hereto, including, without limitation, making
timely all such filings as may be required pursuant to the HSR Act and seeking
all such consents and approvals as may be required to be obtained by such party
to consummate the transactions contemplated by this Agreement and the Related
Agreements.
5.03 Reasonable Efforts. From and after the date of this Agreement,
each of the Company and the Purchasers shall use reasonable efforts to take such
action within their reasonable control as will be required to satisfy their
respective conditions under Article II hereof.
ARTICLE VI
DEFAULT IN PAYMENTS
6.01 Defaults by AOL. Upon any default by AOL in the timely payment of
the full amount owed the Company with respect to any Shares to be purchased by
AOL at the Initial Closing or any Additional Closing (each, an "AOL Payment
Default"), the Company, Aspen and Atlantis shall have the right to effect any or
all of the following remedies:
A. The Company shall have all remedies available at law or in equity
upon any AOL Payment Default. Interest shall accrue on the amount of each AOL
Payment Default at the Default Rate from the date due until the date paid in
full. If any legal proceedings relating to an AOL Payment Default are commenced
by the Company, the prevailing party in such proceedings shall be entitled to
its reasonable attorneys' fees and costs in such proceeding. In addition, for
the period commencing on the first day of the month in which any such AOL
Payment Default first arises until such AOL Payment Default is fully cured by
AOL, AOL and each of its Affiliates and Subsidiaries shall not be entitled to
any dividends or other distributions in respect of any of their Company
Securities, which dividends and distributions shall be applied to such AOL
Payment Default and, only after such AOL Payment Default shall be fully cured by
AOL, be paid to AOL and its Affiliates or Subsidiaries, as applicable.
B. Notwithstanding anything to the contrary contained in subsection A
hereof, immediately upon the occurrence of an AOL Payment Default, the Company
shall notify each of Aspen and Atlantis of such AOL Payment Default, and, in
addition to the Company's exercise of any additional remedy hereunder, Aspen and
Atlantis shall each have the individual right, but not the obligation, to cure
all or any portion of the AOL Payment Default and to receive from the Company,
subject to Section 1.03 hereof, a number of Shares equal to the quotient
obtained by dividing (i) the aggregate amount of the applicable AOL Payment
Default that is paid by Aspen and/or Atlantis by (ii) the Stipulated Price (the
"AOL Default Shares"). Such right shall be exercised by delivering a written
notice to the Company and AOL within five (5) Business Days after the date of
the Company's notice delivered pursuant to this subsection, which exercise
notice shall specify the number of Shares which Aspen or Atlantis, as
applicable, is electing to purchase pursuant to this provision. If the aggregate
amount of the elections made by Aspen and Atlantis pursuant to timely election
notices exceeds the aggregate number of AOL Default Shares, then the electing
parties shall be entitled to acquire such AOL Default Shares pro rata based on
such electing party's share ownership of the Company on the date hereof. The
closing of any such sale shall be consummated at a date to be mutually agreed by
the Company and the electing parties, which date shall be no later than ten (10)
Business Days after the date of the Company's notice delivered pursuant to this
subsection.
C. AOL hereby grants to each of Aspen and Atlantis an option (the "AOL
Call Option") to purchase from AOL, free and clear of any and all Liens and
preemptive and other similar rights (except as contemplated by the Related
Agreements), and AOL shall be obligated to sell to Aspen and/or Atlantis, as
applicable, all or any portion, as determined by Aspen and/or Atlantis, of such
number of shares of Series B Preferred Stock, Series D Preferred Stock or Class
B Common Stock, whichever is selected by Aspen and/or Atlantis in their sole
discretion, as is equal to the total number of AOL Default Shares purchased by
it pursuant to the provisions of subsection B above. Aspen and/or Atlantis, as
applicable, may exercise the AOL Call Option by written notice (the "AOL
Purchase Notice") to AOL, with a copy to the Company, which AOL Purchase Notice
must be delivered to AOL within ten (10) days after the consummation of the
acquisition of the AOL Default Shares by such party from the Company, which AOL
Purchase Notice shall specify the number and type of shares as to which the
party delivering such notice is exercising the AOL Call Option. The price at
which the AOL Call Option shall be exercised shall be equal to eighty percent
(80%) of the Stipulated Price. The purchase and sale of the shares owned by AOL
to Aspen and/or Atlantis, as applicable, pursuant to this subsection shall take
place at the principal place of business of the Company (unless otherwise agreed
by AOL, Aspen and/or Atlantis, as applicable), on a date specified by Aspen
and/or Atlantis, as applicable, but in any event no later than thirty (30) days
after the AOL Purchase Notice has been sent pursuant to this subsection, unless
otherwise agreed by AOL, Aspen and/or Atlantis, as applicable (the "AOL Call
Option Closing"). At the AOL Call Option Closing, Aspen and/or Atlantis, as
applicable, shall tender and AOL shall accept payment of the purchase price by
certified or bank check or wire transfer, and AOL shall deliver to Aspen and/or
Atlantis, as applicable, in exchange therefor the certificate(s) for the shares
being acquired pursuant to the AOL Purchase Notice, accompanied by duly executed
instruments of transfer.
6.02 Defaults by ODC. Upon any default by ODC in the timely payment of
the full amount owed the Company with respect to any Shares to be purchased by
ODC at the Initial Closing or any Additional Closing (each, an "ODC Payment
Default"), the Company and AOL shall have the right to effect any or all of the
following remedies:
A. The Company shall have all remedies available at law or in equity
upon any ODC Payment Default. Interest shall accrue on the amount of each ODC
Payment Default at the Default Rate from the date due until the date paid in
full. If any legal proceedings relating to an ODC Payment Default are commenced
by the Company, the prevailing party in such proceedings shall be entitled to
its reasonable attorneys' fees and costs in such proceeding. In addition, for
the period commencing on the first day of the month in which any such ODC
Payment Default first arises until such ODC Payment Default is fully cured by
ODC, ODC and each of its Affiliates and Subsidiaries shall not be entitled to
any dividends or other distributions in respect of any of their Company
Securities, which dividends and distributions shall be applied to such ODC
Payment Default and, only after such ODC Payment Default shall be fully cured by
ODC, be paid to ODC and its Affiliates or Subsidiaries, as applicable.
B. Notwithstanding anything to the contrary contained in subsection A
hereof, immediately upon the occurrence of an ODC Payment Default, the Company
shall notify AOL of such ODC Payment Default, and, in addition to the Company's
exercise of any additional remedy hereunder, AOL shall have the right, but not
the obligation, to cure all or any portion of the ODC Payment Default and to
receive from the Company, subject to Section 1.03 hereof, a number of Shares
equal to the quotient obtained by dividing (i) the aggregate amount of the
applicable ODC Payment Default that is paid by AOL by (ii) the Stipulated Price
(the "ODC Default Shares"). Such right shall be exercised by delivering a
written notice to the Company and ODC within five (5) Business Days after the
date of the Company's notice delivered pursuant to this subsection, which
exercise notice shall specify the number of Shares which AOL is electing to
purchase pursuant to this provision. The closing of any such sale shall be
consummated at a date to be mutually agreed by the Company and AOL, which date
shall be no later than ten (10) Business Days after the date of the Company's
notice delivered pursuant to this subsection.
C. ODC hereby grants to AOL an option (the "ODC Call Option") to
purchase from ODC, free and clear of any and all Liens and preemptive and other
similar rights (except as contemplated by the Related Agreements), and ODC shall
be obligated to sell to AOL all or any portion, as determined by AOL, of such
number of shares of Series C Preferred Stock, Series E Preferred Stock or Class
C Common Stock, whichever is selected by AOL in its sole discretion, as is equal
to the total number of ODC Default Shares purchased by it pursuant to the
provisions of subsection B above. AOL may exercise the ODC Call Option by
written notice (the "ODC Purchase Notice") to ODC, with a copy to the Company,
which ODC Purchase Notice must be delivered to ODC within ten (10) days after
the consummation of the acquisition of the ODC Default Shares by such party from
the Company, which ODC Purchase Notice shall specify the number and type of
shares as to which the party delivering such notice is exercising the ODC Call
Option. The price at which the ODC Call Option shall be exercised shall be equal
to eighty percent (80%) of the Stipulated Price. The purchase and sale of the
shares owned by ODC to AOL, pursuant to this subsection shall take place at the
principal place of business of the Company (unless otherwise agreed by ODC and
AOL), on a date specified by AOL but in any event no later than thirty (30) days
after the ODC Purchase Notice has been sent pursuant to this subsection, unless
otherwise agreed by ODC and AOL(the "ODC Call Option Closing"). At the ODC Call
Option Closing, AOL shall tender and ODC shall accept payment of the purchase
price by certified or bank check or wire transfer, and ODC shall deliver to AOL
in exchange therefor the certificate(s) for the shares being acquired pursuant
to the ODC Purchase Notice, accompanied by duly executed instruments of
transfer.
6.03 Default by Banco Itau. Upon any default by Banco Itau in the
timely payment of the full amount owed the Company with respect to any Shares to
be purchased by Banco Itau at the Initial Closing (a "Banco Itau Payment
Default") the Company shall be entitled to receive liquidated damages in the
amount of 20% of the total amount of the Banco Itau Payment Default.
The Company and Banco Itau have agreed that the amount of harm that may
be suffered by the Company through a Banco Itau Payment Default is not readily
ascertainable and the amount set forth herein reasonably estimates the value of
such harm to the Company and is not in the nature of a penalty. Such damages
shall be immediately due and owing upon the Banco Itau Payment Default and shall
accrue interest at a rate of 18% per annum until such time as they are paid in
full.
ARTICLE VII
DEFINITIONS
The following terms shall, for the purposes of this Agreement, have the
following meanings (terms defined in the singular or the plural include the
plural or the singular, as the case may be):
"Additional Closing" has the meaning set forth in Section 1.02.
"Affiliate" of any Person shall mean any other Person that, directly or
indirectly, controls, is under common control with or is controlled by that
Person. For purposes of this definition, "control" (including, with its
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"Agreement" has the meaning set forth in the recitals above.
"Amended Certificate" has the meaning set forth in Section 2.01 F.
"AOL" has the meaning set forth in the recitals above.
"AOL Call Option" has the meaning set forth in Section 6.01 C.
"AOL Call Option Closing" has the meaning set forth in Section 6.01 C.
"AOL Default Shares" has the meaning set forth in Section 6.01 B.
"AOL Payment Default" has the meaning set forth in Section 6.01.
"AOL Purchase Notice" has the meaning set forth in Section 6.01 C.
"Aspen" has the meaning set forth in the recitals above.
"Aspen Series E Shares" has the meaning set forth in the recitals
above.
"Atlantis" has the meaning set forth in the recitals above.
"Atlantis Series E Shares" has the meaning set forth in the recitals
above.
"Banco Itau" has the meaning set forth in the recitals above.
"Banco Itau Class A Shares" has the meaning set forth in the recitals
above.
"Banco Itau Payment Default" has the meaning set forth in Section 6.03.
"BAT Law" shall mean Resolution #15/98 of the Conselho Administrativo
de Defesa Economica promulgated thereunder.
"BBSA" shall have the meaning set forth in Section 2.01 E.
"BISA" shall have the meaning set forth in Section 2.01 E.
"Board" shall mean the Company's Board of Directors.
"Business Day" shall mean any day, other than a Saturday or Sunday, on
which Federally chartered banks in the United States generally are open for
business.
"Certificate of Designation" has the meaning set forth in Section 1.06.
"▇▇▇▇▇▇▇▇ Family" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or
their lineal descendants, individually or collectively and/or any trusts for the
exclusive benefit of any one or more of such persons.
"Class A Common Stock" has the meaning set forth in the recitals above.
"Class B Common Stock" has the meaning set forth in Section 1.05.
"Class C Common Stock" has the meaning set forth in Section 1.05.
"Common Shares" has the meaning set forth in the recitals above.
"Common Stock" has the meaning set forth in Section 1.05.
"Company" has the meaning set forth in the recitals above.
"Company SEC Documents" has the meaning set forth in Section 3.03.
"Company Securities" shall mean all shares of the Company's stock, and
all options, warrants and other rights to acquire shares of the Company's stock.
"Conversion Shares" has the meaning set forth in Section 1.05.
"Default Rate" shall mean a per annum rate of interest equal to the
Prime Rate plus two hundred (200) basis points.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
as amended.
"Funding Notice" has the meaning set forth in Section 1.04
"HSR Act" shall mean ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Initial Closing" has the meaning set forth in Section 1.01.
"Initial Shares" has the meaning set forth in Section 1.01.
"Investment Bank" has the meaning set forth in Section 2.01 H.
"Itau Bank" has the meaning set forth in Section 2.01 E.
"Lien" shall mean (i) any interest in property (whether real, personal
or mixed and whether tangible or intangible), or other restriction including,
without limitation, any lien or security interest which secures an obligation
owed to, or a claim by, a person other than the owner of such property, whether
such interest is based on the common law, statute or contract, including,
without limitation, any such interest arising from a lease, mortgage, charge,
pledge, security agreement, conditional sale, trust receipt or deposit in trust,
or arising from a consignment of bailment given for security purposes, (ii) any
encumbrance upon such property which does not secure such an obligation, or
(iii) any exception to or defect in the title to or ownership interest in such
property.
"▇▇▇▇▇ ▇▇▇▇▇" has the meaning set forth in Section 1.01.
"ODC" has the meaning set forth in the recitals above.
"ODC Call Option" has the meaning set forth in Section 6.02 C.
"ODC Call Option Closing" has the meaning set forth in Section 6.02 C.
"ODC Default Shares" has the meaning set forth in Section 6.02 B.
"ODC Payment Default" has the meaning set forth in Section 6.02.
"ODC Purchase Notice" has the meaning set forth in Section 6.02 C.
"Person" shall mean an individual, sole proprietorship, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
organization, mutual company, joint stock company, estate, union, employee
organization, bank, trust company, land trust, business trust or other
organization, whether or not a legal entity, or a Governmental Authority.
"Prime Rate" shall mean, for any date, the rate of interest per annum
publicly announced from time to time as the prime rate in effect as of such date
as reported in the "Money Rates" column of the Eastern Edition of The Wall
Street Journal or other comparable source as agreed to by the Parties if The
Wall Street Journal is not then publishing such figures. Each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Related Agreements" has the meaning set forth in Section 2.01 F.
"Remaining Shares" has the meaning set forth in Section 1.02 A.
"Restated AOL/ODC Registration Agreement" has the meaning set forth in
Section 2.01 D.
"Restated AOL/ODC Stockholders' Agreement" has the meaning set forth in
Section 2.01 C.
"Restated Certificate" has the meaning set forth in Section 1.05.
"Restated Itau Agreement" has the meaning set forth in Section 2.01 E.
"Riverview" has the meaning set forth in Section 2.01 C.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder, as amended.
"Series B Preferred Stock" has the meaning given in the Restated
Certificate.
"Series C Preferred Stock" has the meaning given in the Restated
Certificate.
"Series D Preferred Stock" has the meaning set forth in the recitals
above.
"Series D Shares" has the meaning set forth in the recitals above.
"Series E Preferred Stock" has the meaning set forth in the recitals
above.
"Series E Shares" has the meaning set forth in the recitals above.
"Shares" has the meaning set forth in the recitals above. If the
Amended Certificate has been filed, the term "Shares" shall also mean Series B
Preferred Stock and Series C Preferred Stock purchased hereunder.
"Special Committee" has the meaning given in the Restated Certificate.
"Stipulated Price" has the meaning set forth in the recitals above.
"Subsidiary" has the meaning given in the Restated Certificate.
"Voting Agreement" shall mean the Voting Agreement, dated as of March
30, 2001, by and among AOLA, ODC and AOL.
"Voting Stock" shall mean securities having the right to vote generally
in any election of Directors of the Company (other than solely by reason of the
occurrence of an event).
"Wholly Owned Affiliate" shall mean with respect to any Person any
other Person which is directly or indirectly wholly owned by such Person,
directly or indirectly wholly owns such Person or is directly or indirectly
wholly owned by the same Person as such Person, with such ownership to mean
possession of both 100% of the equity interest and 100% of the voting interest,
except for directors' qualifying shares, if any. Any Person that is directly or
indirectly wholly owned by the ▇▇▇▇▇▇▇▇ Family shall be deemed a Wholly Owned
Affiliate of ODC, and any Person that is directly or indirectly wholly owned by
the AOL Time Warner, Inc. a Delaware corporation, shall be deemed a Wholly Owned
Affiliate of AOL.
ARTICLE VIII
TERMINATION; SURVIVAL
8.01 Termination by Mutual Consent. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned at any time by the
mutual written consent of the Company and all of the Purchasers.
8.02 Effect of Termination and Abandonment. Upon termination of this
Agreement and abandonment of the transactions contemplated hereby pursuant to
this Article VIII, no party hereto (or any of its directors, managers, officers
or other Affiliates) shall have any liability or further obligation to any other
party to this Agreement with respect to the subject matters of this Agreement,
other than, solely with respect to a party (and not its directors, managers,
officers or other Affiliates) for its breach of this Agreement or any Related
Agreement to which it is a party and the other documents and agreements executed
in connection with the transactions contemplated thereby.
8.03 Termination by Expiry of Time. Any party may terminate this
Agreement if the Initial Closing has not occurred on or prior to May 1, 2001,
except that a party may not avail itself of this provision if such failure is a
result of breach by such party of any of its representations, warranties or
covenants contained herein.
8.04 Survival of Representations and Warranties. All representations
and warranties made in this Agreement or any other instrument or document
delivered in connection herewith (other than the Related Agreements, which
representations and warranties, if any, shall survive for the periods specified
therein) shall survive for a period of eighteen months from and after the
Initial Closing other than the representations set forth in the first three
sentences of Section 3.01, each of which shall survive for a period of six (6)
years from the date of the Initial Closing.
ARTICLE IX
MISCELLANEOUS
9.01 No Waiver; Cumulative Remedies. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
9.02 Addresses for Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid.
If to the Purchasers:
To AOL:
America Online, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇
Attn: President, AOL International
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
America Online, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇
Attn: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To ODC:
Aspen Investments LLC
c/o Finser Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Atlantis Investments LLC
c/o Finser Corporation
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Attn: General Counsel
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With a copy (which shall not constitute notice) to:
Milbank, Tweed, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP
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To Banco Itau:
Banco Itau, S.A. - Cayman Branch
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Attn: General Counsel
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With a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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If to the Company:
America Online Latin America, Inc.
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Attn: Chief Executive Officer
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With a copy (which shall not constitute notice) to:
America Online Latin America, Inc.
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Attn: General Counsel
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All notices, requests, consents and other communications hereunder shall be
deemed to have been given (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such party set forth above, (ii) if made
by telecopy or facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next Business Day (or if sent overseas, on the second Business
Day) following the day such notice is delivered to the courier service, or (iv)
if sent by registered or certified mail, on the date delivery is made at the
address of such party set forth above.
9.03 Costs, Expenses and Taxes. Except as otherwise provided herein,
each of the parties hereto shall pay its own fees and expenses (including the
fees of any attorneys, accountants, appraisers or others engaged by such party)
in connection with this Agreement and the transactions contemplated hereby
whether or not the transactions contemplated hereby are consummated.
Notwithstanding the foregoing, (i) the Company will promptly reimburse each of
the Purchasers for its reasonable legal fees and expenses, not to exceed $25,000
per Purchaser (with Aspen and Atlantis considered one Purchaser for purposes
hereof), incurred in connection with the transactions contemplated by this
Agreement, and (ii) the Company shall pay any and all stamp or other similar
taxes payable or determined to be payable in connection with the execution and
delivery of this Agreement, the issuance of the Shares and the other instruments
and documents to be delivered hereunder or thereunder, and agrees to save the
Purchasers harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
9.04 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the Company and the Purchasers and their respective
heirs, successors and assigns, and may not be assigned by the Company or by any
Purchaser without the prior written consent of each of the other parties hereto;
provided, however, that a Purchaser may assign this Agreement (i) to a Wholly
Owned Affiliate of such Purchaser or (ii) to any entity not less than 75% of the
outstanding equity securities and voting power of which are owned, directly or
indirectly, by such Purchaser. Notwithstanding anything in the immediately
preceding sentence to the contrary, this Agreement may not be assigned without
the assignee hereof explicitly agreeing to be bound by the terms and conditions
of the relevant Related Agreements. No such assignment shall relieve such
assigning Purchaser from any of its obligations hereunder.
9.05 Prior Agreements. This Agreement, the Related Agreements and the
other instruments executed and delivered herewith constitute the entire
agreement between the parties and supersede any prior understandings or
agreements concerning the subject matter hereof, including specifically the
letter agreement, dated February 13, 2001, by and among the parties.
9.06 Severability. The provisions of this Agreement are severable and,
in the event that any court of competent jurisdiction shall determine that any
one or more of the provisions or part of a provision contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement; but this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of a provision, had never been contained herein, and such
provisions or part reformed so that it would be valid, legal and enforceable to
the maximum extent possible.
9.07 Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware, USA, without
regard to its principles of conflicts of laws. To the extent otherwise
applicable, the United Nations Convention on Contracts for the International
Sale of Goods shall not apply to the construction or interpretation of this
Agreement. Each party 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 including actions seeking injunctive relief, and to service of process
in any jurisdiction in any such action by means of notice delivered pursuant to
Section 9.02 hereof; provided, however, to permit a party to enforce a judgment
each party also irrevocably consents to the jurisdiction of the courts in the
place where such judgment enforcement is sought. Each party waives (i) any
objection it otherwise may have to the personal jurisdiction and venue of the
courts designated in this Section 9.07 and (ii) the right to trial by jury.
9.08 Headings. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
9.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
9.10 Further Assurances. From and after the date of this Agreement,
upon the request of any Purchaser or the Company, the Company and the Purchasers
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
9.11 Waiver of Preemptive Rights. Each of the Purchasers hereby waives
any and all preemptive rights it may have in respect of the transactions
contemplated hereby.
9.12 Interpretation. The parties hereto acknowledge and agree that: (i)
each party and its counsel have reviewed the terms and provisions of this
Agreement; (ii) the rule of construction to the effect that any ambiguities are
resolved against the drafting party shall not be employed in the interpretation
of this Agreement; and (iii) the terms and provisions of this Agreement shall be
construed fairly as to the parties hereto and not in favor of or against any
party, regardless of which party was generally responsible for the preparation
of this Agreement. Except as the context may otherwise require, whenever used
herein, the singular number shall include the plural, the plural shall include
the singular, the use of any gender shall include all persons. All references to
dollars or the symbol "$" shall refer to United States Dollars.
9.13 Amendments, Waivers and Consents. Changes in, termination or
amendments of or additions to this Agreement may be made only by mutual
agreement of all of the parties hereto. Except as provided in Article II hereof,
any waiver or consent may be given subject to satisfaction of conditions stated
therein and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as an instrument under seal as of the date first above written.
PURCHASERS:
AMERICA ONLINE, INC.
By:
Name:
Title:
ASPEN INVESTMENTS LLC,
By:
Name:
Title:
ATLANTIS INVESTMENTS LLC
By:
Name:
Title:
BANCO ITAU, S.A. - CAYMAN BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE COMPANY:
AMERICA ONLINE LATIN AMERICA, INC.
By:
Name:
Title:
EXHIBIT A
Dollar Amount Dollar Amount
Dollar Amount At First At Second
Name and Address of Purchaser At Initial Closing Additional Closing Additional Closing
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America Online, Inc. $22,112,691.67 $22,112,691.67 $22,112,691.66
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Aspen Investments LLC $10,632,841.67 $10,632,841.67 $10,632,841.66
c/o Finser Corporation
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Atlantis Investments LLC $10,632,841.67 $10,632,841.67 $10,632,841.66
c/o Finser Corporation
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Banco Itau, S.A. - Cayman Branch $19,864,875.00 N/A N/A
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SCHEDULE I
1. Form 10-K for the fiscal year ended June 30, 2000, filed September 28, 2000
(file number 00031181)
2. Form 10-Q for the fiscal quarter ended September 30, 2000, filed November
14, 2000 (file number 00031181)
3. Form 8-K, filed November 22, 2000 (file number 00031181)
4. Form 8-K, filed January 22, 2001 (file number 00031181)
5. Form 8-K, filed February 28, 2001 (file number 00031181)