EXHIBIT 18
Execution Copy
VOTING AGREEMENT
Voting Agreement, dated as of October 3, 2002 (this "Agreement"), by and
among America Online, Inc., AOL Time Warner Inc., Aspen Investments LLC and
Atlantis Investments LLC (individually, a "Stockholder" and, collectively, the
"Stockholders").
Whereas, America Online Latin America, Inc., a Delaware corporation (the
"Company") and the Stockholders have, contemporaneously with the execution and
delivery of this Agreement, entered into a Preferred Stock Conversion Agreement
(the "Conversion Agreement") providing for the conversion of certain shares of
High Vote Preferred Stock into shares of Class A Common Stock, pursuant to the
terms and conditions thereof (capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Conversion
Agreement);
Whereas, as contemplated by the Conversion Agreement, there will be a
meeting of the Stockholders of the Company to consider, among other matters,
adopting a proposed Certificate of Amendment (the "Charter Amendment") to the
Fourth Restated Certificate of Incorporation of the Company ("Current Charter"),
substantially in the form set forth in Exhibit A to the Conversion Agreement,
which is contemplated to be filed and to become effective immediately after the
approval by the stockholders of the Company;
Whereas, as an essential condition and inducement to each Stockholder to
enter into the Conversion Agreement and in consideration therefor, the
Stockholders have agreed to enter into this Agreement in order to facilitate the
matters contemplated by the Conversion Agreement; and
Whereas, as of the date hereof, the Stockholders own of record and/or
beneficially shares of the Company's capital stock as set forth opposite their
respective names on Schedule A hereto (together with all additional shares of
the Company's capital stock which any of them shall hereafter own of record
and/or beneficially, "Shares") and desire to enter into this Agreement;
Now, therefore, in consideration of the foregoing and the mutual covenants
and agreements contained herein and in the Conversion Agreement, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, each of the Stockholders agrees as follows:
Article 1
Voting of Shares
1.1 Voting Agreement. Each Stockholder hereby agrees to (a) appear, in
person or by proxy, or cause any other holder of record of any 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 Shares of such
Stockholder are counted for the purpose of obtaining a quorum at any meeting of
stockholders of the Company, and at any adjournment or adjournments thereof, at
which any proposal to approve and adopt the Charter Amendment or the Conversion
Agreement is presented for consideration and action by the stockholders of the
Company (a "Meeting") and (b) vote, or cause the Record Holder to vote, in
person or by proxy, or, to the extent written consents are solicited, to execute
and deliver, or cause the Record Holder to execute and deliver, written consents
with respect to, all Shares owned by such Stockholder as of the record date for
determining stockholders of the Company entitled to vote, or execute and deliver
written consents, in favor of any proposal to adopt the Charter Amendment and
the Conversion Agreement. Each Stockholder shall also vote against, and refrain
from executing and
delivering written consents in favor of, any proposal which is contrary to or
inconsistent with a proposal to adopt the Charter Amendment. Each Stockholder
shall also vote in favor of the adjournment, to another time, date and place, of
any Meeting at which any proposal to adopt the Charter Amendment is presented
for consideration and action by the stockholders of the Company if a quorum for
such Meeting is lacking or if the votes cast at such Meeting in favor of any
such proposal are insufficient to approve such proposal.
1.2 No Inconsistent Agreements. Each Stockholder hereby covenants and
agrees that such Stockholder will not, at any time while this Agreement remains
in effect, (a) enter into any voting agreement or voting trust with respect to
any of the Shares, or (b), grant a proxy or give a power-of-attorney or make any
other appointment with respect to any of the Shares, except as is and will be
consistent with the agreement to vote or consent under Section 1.1. Each
Stockholder also covenants and agrees that such Stockholder will not, prior to
the termination of this Agreement, take any action that could make any
representation or warranty of such Stockholder contained herein untrue or could
constitute a breach of any covenant or agreement by such Stockholder hereunder
or could have the effect of preventing, disabling, hindering or delaying such
Stockholder, any other Stockholder or the Company from performing their
respective obligations under this Agreement.
Article 2
Representations, Warranties, Covenants and Agreements of Stockholders
Each Stockholder, severally and not jointly, hereby represents, warrants,
covenants and agrees as follows:
2.1 Authority Relative to Agreement. Such Stockholder has the power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. All necessary
corporate or other entity action on behalf of such Stockholder has been taken to
authorize this Agreement to be entered into on behalf of and to be performed by
such Stockholder. This Agreement has been duly and validly executed and
delivered on behalf of such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditor's rights generally.
2.2 No Conflict. The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, (a) result in any breach of or constitute a default (or an event that,
with notice or lapse of time or both, would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any of the Shares pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder is bound or to which any of the Shares owned by
such Stockholder is or are subject or by which they are or any of them is
affected, or under the applicable organizational documents of such Stockholder
or (b) conflict with or violate any law, regulation, rule, judgment, order,
decree or award, in each case applicable to such Stockholder or any Shares owned
of record and/or beneficially by such Stockholder.
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2.3 No Consents. The execution and delivery by such Stockholder of this
Agreement or any instrument required by this Agreement to be executed and
delivered by such Stockholder does not, and the performance by such Stockholder
of this Agreement or any instrument required by this Agreement to be executed
and delivered by such Stockholder will not, require such Stockholder to obtain
any consent or waiver of any Person or the consent, approval, authorization or
action by, license, waiver, qualification, order or permit of any federal, state
or local government or any court, administrative or regulatory tribunal, agency,
body, or commission or other governmental authority, domestic or foreign (a
"Governmental Authority") required under any law, regulation, rule, judgment,
order, decree or award, in each case applicable to such Stockholder or any
Shares owned of record and/or beneficially by such Stockholder, or observe any
waiting period imposed by any Governmental Authority.
2.4 Title to the Shares. All Shares beneficially owned by such Stockholder
as of the date hereof are set forth opposite such Stockholder's name under
column I of Schedule A hereto and all Shares owned of record by each Stockholder
are set forth opposite such Stockholder's name under column II of Schedule A
hereto. All such Shares are owned free and clear of all Liens, options, rights
of first refusal or first offer, and other than as set forth in this Agreement,
the Conversion Agreement, the Second Amended and Restated Stockholders'
Agreement and the Amended and Restated Registration Rights and Stockholders'
Agreement. Such Stockholder has the sole power to vote and dispose of all Shares
set forth opposite such Stockholder's name on Schedule A hereto, with no
restrictions or limitations on such power.
2.5 Transferees of Shares. In the event that any Stockholder intends to
transfer ownership of any of the Shares owned of record and/or beneficially by
such Stockholder to a Person who is not a Stockholder, as a condition to the
effectiveness of such transfer, such Stockholder shall cause the transferee to
agree, by executing and delivering to the other Stockholders a joinder agreement
in form and substance satisfactory to the other Stockholders, to become a party
to this Agreement from and after the time such transfer is effected. Each
Stockholder acknowledges that the Company shall not be required to recognize the
effectiveness of any transfer of Shares by a Stockholder or a purported
successor in interest to a Stockholder which is not in compliance with the
foregoing requirement.
Article 3
Certain Acknowledgements
3.1 Matters Related to Adoption of the Charter Amendment; Independent
Committee. Each Stockholder acknowledges that the Independent Committee of the
Board of Directors of the Company has today recommended to the Board approval of
the Charter Amendment, and that the Special Committee and the Board of Directors
have approved the adoption of the Charter Amendment.
Article 4
Miscellaneous
4.1 Reasonable Efforts. Each Stockholder shall use reasonable efforts to assist
and cooperate with one another in an expeditious manner, to enable the full and
timely performance of this Agreement, including (a) cooperating with the Company
and the other Stockholders in connection with the Meeting to adopt the Charter
Amendment, (b) not taking any action which will prevent such Meeting of the
Stockholders to be held or unreasonably delayed, (c) seeking to obtain all
necessary actions or non-
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actions, waivers, consents and approvals from Governmental Authorities, making
all necessary registrations and filings and taking all reasonable steps as may
be necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Authority, (d) obtaining all necessary consents,
approvals or waivers from third parties, (e) not taking any action to prevent
the Company from defending any lawsuits or other legal proceedings, whether
judicial or administrative, challenging the validity, effectiveness or
performance of this Agreement, including but not limited to seeking to have any
stay, temporary restraining order or preliminary injunction entered by any
Governmental Authority vacated or reversed, and (f) the execution and delivery
of any additional instruments necessary to consummate the transactions
contemplated by, and to carry out the purpose and intent of, this Agreement,
other than the giving of any proxy by any Stockholder.
4.2 Termination. This Agreement shall terminate upon the earliest to occur
of (a) the mutual written agreement of each Stockholder, (b) except as otherwise
provided herein, the termination of the Conversion Agreement in accordance with
its terms, (c) the effective date of the Charter Amendment, or (d) December 31,
2003.
4.3 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 parties 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 party or parties hereto, without the necessity of posting any bond, and
(b) an order of specific performance of the provisions hereof.
4.4 Successors and Affiliates. This Agreement shall inure to the benefit of
and shall be binding upon the parties hereto, their Affiliates and the legal
representatives, successors and permitted assigns of the parties hereto and
their Affiliates. If any Stockholder shall at any time hereafter acquire
ownership of, or voting power with respect to, any additional Shares in any
manner, whether by the exercise of any options, warrants or other rights, by
operation of law or otherwise, such Shares shall be held subject to all of the
provisions of this Agreement. Without limiting the foregoing, each Stockholder
specifically acknowledges and agrees that the obligations of such Stockholder
hereunder shall not be terminated by operation of law.
4.5 Entire Agreement; Condition to Effectiveness. This Agreement, together
with the Conversion Agreement and the Current Charter as proposed to be amended
by the Charter Amendment, constitute the entire agreement among the Stockholders
with respect to the subject matter hereof. This Agreement shall not take effect
unless and until the Conversion Agreement shall have been executed and delivered
by the Company and by each of the Stockholders and shall have taken effect.
4.6 Captions and Counterparts. The captions in this Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument.
4.7 Amendment. This Agreement may not be amended except by an instrument in
writing signed by all of the parties hereto.
4.8 Waivers. Except as provided in this Agreement, no action taken pursuant
to this Agreement, including but not limited to any investigation by or on
behalf of any party, shall be deemed to
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constitute a waiver of compliance with any representations, warranties,
covenants or agreements contained in this Agreement by the party taking such
action. The waiver by any party hereto of a breach of any provision hereunder
shall not operate or be construed as a waiver of any prior or subsequent breach
of the same or any other provision hereunder.
4.9 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
purpose and intent of this Agreement will be carried into effect to the fullest
extent possible.
4.10 Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by nationally-recognized overnight courier or by registered or certified
mail, postage prepaid, return receipt requested, or by telecopier with a copy
thereof to be delivered by mail (as aforesaid) within 24 hours of such
transmission by telecopier and with confirmation of receipt of transmission by
telecopier received, addressed as follows:
If to America Online, Inc.:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000
Attention: President, AOL International
Telecopier: (000) 000-0000
If to AOL Time Warner Inc.:
AOL Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Vice President, Treasurer
Telecopier: (000) 000-0000
If to Aspen Investments LLC:
Aspen Investments LLC
c/o Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
5
If Atlantis Investments LLC:
Atlantis Investments LLC
c/o Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such notices
or communications shall be deemed to be received (a) in the case of personal
delivery, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day after the date when sent (c) in the
case of telecopier transmission, upon confirmed receipt, and (d) in the case of
mailing, on the third business day following the date on which the piece of mail
containing such communication was posted.
4.11 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. State courts within the State
of Delaware and, more particularly to the fullest extent such court shall have
subject matter jurisdiction over the matter, the Court of Chancery of the State
of Delaware shall have exclusive jurisdiction over any and all disputes between
the parties hereto, whether in law or equity, arising out of or relating to this
Agreement and the agreements, instruments and documents contemplated hereby. The
parties consent to and agree to submit to the jurisdiction of such courts. Each
of the parties hereby waives, and agrees not to assert in any such dispute, to
the fullest extent permitted by applicable Delaware law, or any other applicable
law, any claim that (a) such party is not personally subject to the jurisdiction
of such courts, (b) such party and such party's property is immune from any
legal process issued by such courts or (c) any litigation commenced in such
courts is brought in an improper or inconvenient forum. Each of the parties
hereto agrees that service of process may be made on such party in the manner
provided in Section 4.10 or in any other manner permitted by Delaware law, or
any other applicable law, anywhere in the world, and that such service shall
constitute valid and sufficient service of process on such party.
4.12 Nature of Obligations of Stockholders. The obligations of the
Stockholders hereunder shall be "several" and not "joint" or "joint and
several," except that (a) the obligations of Aspen Investments LLC and Atlantis
Investments LLC shall be "joint and several," and (b) the obligations of America
Online, Inc. and AOL Time Warner Inc. shall be "joint and several." Except as
provided in the immediately preceding sentence, 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.
4.13 Interpretation. The parties have participated jointly in the
negotiation of this Agreement. In the event that an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of the provisions
of this Agreement.
4.14 Waiver of Jury Trial. Each party hereto hereby waives any right to
have a jury participate in resolving any dispute arising out of, or in
connection with, related to, or incidental to this Agreement, the calling or
holding of a Meeting to consider and act upon a proposal which is the subject of
the agreement to vote, or execute and deliver written consents, under Section
1.1 or the conduct of any
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such Meeting insofar as relates to the subject matter of the agreement to vote,
or execute and deliver written consents, under Section 1.1.
4.15 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
4.16 Fees and Expenses. In the event of any dispute hereunder, fees and
expenses of the prevailing party shall be paid by the non-prevailing party.
[Signatures on next page]
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In witness whereof, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
AMERICA ONLINE, INC.
By:
-----------------------------------
Name:
Title:
AOL TIME WARNER INC.
By:
-----------------------------------
Name:
Title:
ASPEN INVESTMENTS LLC
By:
-----------------------------------
Name:
Title:
ATLANTIS INVESTMENTS LLC
By:
-----------------------------------
Name:
Title:
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Schedule A
Stockholders
I II
Name and Address (Beneficially Owned) (Owned of Record)
---------------- -------------------- -----------------
America Online, Inc. 120,010,456(1) 120,010,456(1)
00000 XXX Xxx
Xxxxxx, XX 00000-0000, XXX
Attn: President, AOL International
Telecopier: (000) 000-0000
With a copy (which shall not
constitute notice) to:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000, XXX
Attn: General Counsel
Telecopier: (000) 000-0000
AOL Time Warner Inc. 125,692,431(1) 5,681,975(1)
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Vice President, Treasurer
Telecopier: (000) 000-0000
With a copy (which shall not
constitute notice) to:
AOL Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Telecopier: (000) 000-0000
(1)Note: These numbers include the Class A Common Stock and the Series B
Preferred Stock outstanding (including the shares issued as interest payment on
September 30, 2002). Excluded are the shares underlying the warrant held of
record by America Online, Inc. and the shares underlying the Convertible Debt
held by AOL Time Warner Inc., neither of which carry any vote at this time. Such
shares will be covered by this Agreement and included on this Schedule A if the
warrant is exercised or some of the Convertible Debt is converted prior to the
Meeting.
A-1
I II
Name and Address (Beneficially Owned) (Owned of Record)
---------------- -------------------- -----------------
Aspen Investments LLC 57,670,886(2) 57,454,886(2)
c/o Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
Telecopier: (000) 000-0000
With a copy (which shall not
constitute notice) to:
Milbank, Tweed, Xxxxxx and XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Spring, Esq.
Telecopier: (000) 000-0000
Atlantis Investments LLC 57,743,108(3) 57,454,220(3)
c/o Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
Telecopier: (000) 000-0000
With a copy (which shall not
constitute notice) to:
Milbank, Tweed, Xxxxxx and XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Spring, Esq.
Telecopier: (000) 000-0000
(2)Note: Includes 2,000,000 shares of Class A Common Stock and 55,670,886 shares
of Series C Preferred, of which 216,000 shares are held by children of Xxxxxxx
X. Xxxxxxxx.
(3)Note: Includes 2,000,000 shares of Class A Common Stock and 55,743,197 shares
of Series C Preferred, of which 288,888 shares are held by the children of
Xxxxxxx X. Xxxxxxxx.
A-2
