Exhibit 10.24
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
EL SITIO, INC.,
THE HOLDERS OF ITS CLASS A CONVERTIBLE PREFERRED SHARES,
and
THE HOLDERS OF ITS CLASS B CONVERTIBLE PREFERRED SHARES
November 9, 1999
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated
as of November 9, 1999, is entered into by and among El Sitio, Inc., an
international business company organized under the laws of the British Virgin
Islands (the "Company"), the holders of the Company's Class A Convertible
Preferred Shares, par value $0.01 per share (the "Class A Preferred Shares"),
and the holders of the Company's Class B Convertible Preferred Shares, $0.01 par
value per share (the "Class B Preferred Shares" and, together with the Class A
Preferred Shares, the "Preferred Shares") (such holders, collectively, the
"Shareholders").
W I T N E S S E T H:
WHEREAS, certain holders of the Company's Class A Preferred
Shares (the "Class A Shareholders") and the Company entered into a Registration
Rights Agreement dated July 2, 1999, as amended by Amendment No. 1 to the
Registration Rights Agreement dated October 6, 1999 (the "Original Registration
Rights Agreement");
WHEREAS, on the date hereof (the "Closing"), the purchasers of
the Class B Preferred Shares (the "Class B Shareholders") are purchasing the
Class B Preferred Shares;
WHEREAS, concurrently herewith, the Shareholders have executed
an Amended and Restated Shareholders' Agreement relating to board
representation, transfers and other matters in relation to their holding of the
Preferred Shares (the "Shareholders' Agreement"); and
WHEREAS, in order to induce the Class B Shareholders to make
the purchases described above, and in connection with such purchases to protect
the rights of all of the Shareholders, the Shareholders and the Company wish to
establish certain agreements relating to the grant by the Company to the
Shareholders of registration and other related rights pursuant to this Amended
and Restated Registration Rights Agreement and to amend certain provisions of
the Original Registration Rights Agreement.
NOW, THEREFORE, in consideration of the premises, mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS.
For the purposes of this Agreement, the following terms shall
have the respective meanings set forth below:
"Affiliate" means, with respect to any person, (i) any other
person of which securities or other ownership interests representing more than
fifty percent (50%) of the voting interests are, at the time such determination
is being made, owned, Controlled or held, directly or indirectly, by such
person, or (ii) any other person which, at the time such determination is being
made, is Controlling, Controlled by or under common Control with, such person.
As used herein, "Control," whether used as a noun or verb, refers to the
possession, directly or indirectly,
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of the power to direct, or cause the direction of, the management or policies of
a person, whether through the ownership of voting securities or otherwise.
"Agreement" means this Amended and Restated Registration
Rights Agreement, as from time to time assigned, supplemented, amended or
modified in accordance with the terms hereof.
"Board" means the Board of Directors of the Company.
"Commission" means the United States Securities and Exchange
Commission.
"Dollars" or "$" means the currency of the United States or
its foreign currency equivalent at the time the determination is made.
"Initial Shareholders" means, collectively, Xxxxxxxxx Limited,
Futurit S.A., XXX.xxx Inc., Tower Plus International Corp., Xxxxxxx
Xxxxxxx-Xxxxxx, Xxxxxx X Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxx
Said, and Xxxxxxx X. Xxxxx.
"Restricted Shares" means any shares of Stock which have not
been registered under the Securities Act and which are owned by any Shareholder.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal law then in force.
"Shareholder" means any person who is a party to this
Agreement (other than the Company) and any permitted transferee of such person
who agrees to be bound by the terms hereof.
"Stock" means the Company's common shares, par value $0.01 per
share.
ARTICLE 2. Registration Rights
2.1 DEMAND REGISTRATION.
(a) Upon notice to the Company (x) from Shareholder(s) holding
in the aggregate $15.0 million or more of the Restricted Shares (or Preferred
Shares which are convertible into Restricted Shares) or (y) Class B
Shareholder(s) holding in the aggregate $5.0 million or more of the Restricted
Shares (or Preferred Shares which are convertible into Restricted Shares), such
Shareholders (the "Requesting Shareholders") shall have the right to request in
writing a registration of such shares that are (or which would be upon
conversion) Restricted Shares. Such request (a "Demand Request") by the
Requesting Shareholders shall (i) specify the number of Restricted Shares which
each Requesting Shareholder intends to sell or dispose of, and (ii) state the
intended method or methods by which the Requesting Shareholder intends to sell
or dispose of such Restricted Shares. Upon receipt of a Demand Request pursuant
to this Section 2.1, the Company shall (as requested) (i) cause to be filed,
within the later of (x) ninety (90) days of the date of delivery to the Company
of the Demand Request, or (y) one hundred eighty (180) days after the
effectiveness of the most recently filed registration statement by the Company,
a registration statement covering such Restricted Shares which the Company has
been so requested
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to register, providing for the registration under the Securities Act of such
Restricted Shares to the extent necessary to permit the disposition of such
Restricted Shares so to be registered in accordance with the intended method of
distribution specified in such Demand Request, provided, that the Company may
delay making such filing or taking such action by not more than one hundred
twenty (120) days if the Company, prior to the time it would otherwise have been
required to file such registration statement or take such action, determines in
good faith that the filing of such registration statement or the taking of such
action would require the disclosure of material, non-public information that, in
the reasonable judgment of the Company, would be detrimental to the Company if
so disclosed (and a delay would be likely to reduce the detrimental effect of
such disclosure or obviate the need for such disclosure to be made, or would
otherwise adversely affect a financing, acquisition, disposition, merger or
other material transaction), (ii) shall use its best efforts to have such
registration statement declared effective by the Commission as soon as
practicable thereafter, and (iii) refrain from filing any other registration
statements with respect to any other securities of the Company until such date
which is one hundred eighty (180) days following effectiveness of the
registration statement filed in response to the Demand Request. Subject to any
existing written agreement between the Company and Bear, Xxxxxxx & Co. Inc., the
underwriter shall be selected by the Requesting Shareholders and shall be
reasonably acceptable to the Company for any registration pursuant to this
Section 2.1.
(b) In the event that the Company is required to file a
registration statement covering any Restricted Shares of any Requesting
Shareholder(s) pursuant to Section 2.1(a) above, the Company shall be permitted
to include newly-issued securities ("Piggyback Securities") in such
registration. Notwithstanding the foregoing, if the managing underwriter of such
proposed registration determines and advises in writing that the inclusion of
all Piggyback Securities proposed to be included in the underwritten public
offering would interfere with the successful marketing of the Requesting
Shareholders' Restricted Shares, then the Company shall not be permitted to
include any Piggyback Securities in excess of the amount, if any, of Piggyback
Securities which the managing underwriter of such underwritten offering shall
reasonably and in good faith agree in writing to include in such offering in
excess of any amount to be registered for the Requesting Shareholder(s). The
Piggyback Securities that are excluded from the underwritten public offering
pursuant to the preceding sentence shall be withheld from the market by the
Company for a period, not to exceed 90 days from the closing of such
underwritten public offering, that the managing underwriter determines is
necessary in order to effect such underwritten public offering.
(c) The Company shall not be required to comply with more than
four (4) Demand Requests, one (1) of which shall be reserved for IAMP (El Sitio)
Investments Ltd. (and its affiliates), one (1) of which shall be reserved for
IMPSAT Corporation, one (1) of which shall be reserved for the Initial
Shareholders, and one (1) of which shall be reserved for the Class B
Shareholders holding a majority of the Class B Preferred Shares or Restricted
Shares issued upon conversion of Class B Preferred Shares; provided, that the
Class B Shareholders and the Class A Shareholders shall each have two (2) Demand
Rights per annum commencing at such time as the Company becomes eligible to
register its Common Shares on Form F-3, for so long as the Company remains, or
at any time the Company is, so eligible.
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2.2 PIGGYBACK REGISTRATION.
(a) Each time that the Company proposes for any reason to
register any of its Stock under the Securities Act (a "Proposed Registration"),
other than pursuant to a registration statement on Form F-4 or Form F-8 or
similar or successor forms, the Company shall promptly give written notice of
such Proposed Registration to the holders of the Restricted Shares (which notice
shall be given not less than thirty (30) days prior to the expected effective
date of the Company's registration statement) and shall offer such holders the
right to request inclusion of any of such holder's Restricted Shares in the
Proposed Registration. No registration pursuant to this Section 2.2 shall
relieve the Company of its obligation to register Restricted Shares pursuant to
Section 2.1.
(b) Each Shareholder shall have twenty (20) days from the
receipt of such notice to deliver to the Company a written request specifying
the number of Restricted Shares such Shareholder intends to sell and such
Shareholder's intended method of disposition. Any Shareholder shall have the
right to withdraw such Shareholder's request for inclusion of such Shareholder's
Restricted Shares in any registration statement pursuant to this Section 2.2 by
giving written notice to the Company of such withdrawal. Subject to Section 2.3
below, the Company shall include in such registration statement all such
Restricted Shares so requested to be included therein; provided, however, that
the Company may at any time withdraw or cease proceeding with any such Proposed
Registration if it shall at the same time withdraw or cease proceeding with the
registration of all other equity securities originally proposed to be
registered.
(c) In the event that the Proposed Registration by the Company
is, in whole or in part, an underwritten public offering of securities of the
Company, any request under Section 2.2(b) hereof must specify that the
Restricted Shares be included in the underwriting on the same terms and
conditions as the shares of Stock, if any, otherwise being sold through
underwriters under such registration.
2.3 PRIORITY ON REGISTRATIONS.
(a) If the managing underwriter advises the Company that the
inclusion of such Restricted Shares would cause a Material Adverse Effect, the
Company will be obligated to include in such registration statement, as to each
Shareholder, only a portion of the Restricted Shares such Shareholder has
requested be registered equal to the ratio which such Shareholder's requested
Restricted Shares bears to the total number of Restricted Shares requested to be
included in such registration statement by all Shareholders who have requested
that their Restricted Shares be included in such registration statement, in the
case of Shareholders exercising rights under Section 2.2 hereof. It is
acknowledged by the Shareholders, that pursuant to the foregoing provision, the
securities to be included in such registration shall be allocated (x) if such
registration has been initiated by the Company for securities to be offered by
the Company, first to the Company, second to Shareholders exercising their
piggyback right and third to all others requesting securities to be included
therein and (y) if such registration has been initiated by a Requesting
Shareholder requesting a Demand Registration, first to such Requesting
Shareholder, second to the Company if it exercises its piggyback right and third
to all others requesting securities to be included therein. If as a result of
the provisions of this Section 2.3(a) any Shareholder shall not be entitled to
include all of its Restricted Shares in a registration that
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such Shareholder has requested to be so included, such Shareholder may withdraw
such Shareholder's request to include Restricted Shares in such registration
statement. The Restricted Shares that are excluded from the underwritten public
offering pursuant to the preceding sentence shall be withheld from the market by
the Shareholders for the applicable period set forth in Section 2.7, if the
managing underwriter determines it necessary in order to effect such
underwritten public offering.
(b) No Shareholder may participate in any registration
statement hereunder unless such Shareholder completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements, including an opinion of its counsel; provided, however, that no
such Shareholder shall be required to make any representations or warranties in
connection with any such registration other than representations and warranties
as to (i) such Shareholder's ownership of its Restricted Shares to be sold or
transferred free and clear of all liens, claims, and encumbrances, (ii) such
Shareholder's power and authority to effect such transfer, and (iii) such
matters pertaining to compliance with securities laws as may be reasonably
requested.
2.4 REGISTRATION PROCEDURES. Whenever any Shareholder has
requested that any Restricted Shares be registered pursuant to the provisions of
this Article 2, the Company will use its commercially reasonable efforts to
effect the registration and the sale of such Restricted Shares in accordance
with the intended method of disposition thereof as set forth in the written
request, and pursuant thereto the Company shall:
(a) prepare and file with the Commission registration
statement(s) with respect to such securities on the appropriate forms, and use
its best efforts to cause such registration statement(s) to become and remain
effective in accordance with Section 2.4(b) hereof and in accordance with all
laws, rules and regulations applicable thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement(s) and the prospectus(es) used in
connection therewith as may be necessary to keep such registration statement(s)
effective until the earlier of (i) the sale of all Restricted Shares covered
thereby or (ii) the date required therefor by the underwriters in the
underwriting agreement, and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Restricted Shares covered
by such registration statement(s);
(c) furnish to each Shareholder participating in such
registration pursuant to Section 2.1 or Section 2.2 (each, a "Participating
Shareholder") such number of copies of any summary prospectus or other
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the Shareholder
may reasonably request in order to facilitate the public sale or other
disposition of such Restricted Shares;
(d) use its best efforts to register or qualify the Restricted
Shares covered by such registration statement(s) under the securities or blue
sky laws of such jurisdictions as the Participating Shareholder shall reasonably
request and do any and all other acts or things which may be necessary or
advisable to enable the Participating Shareholders to consummate the public sale
or other disposition in such jurisdictions of such Restricted Shares; provided,
however, that
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the Company shall not be required to consent to general service of process for
all purposes in any jurisdiction where it is not then subject to process,
qualify to do business as a foreign Company where it would not be otherwise
required to qualify or submit to liability for state or local taxes where it is
not otherwise liable for such taxes;
(e) at any time when a prospectus relating thereto covered by
such registration statement(s) is required to be delivered under the Securities
Act within the appropriate period mentioned in Section 2.4(b) hereof, promptly
notify each Shareholder and each underwriter and (if requested by any such
Shareholder) confirm such notice in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed and, with
respect to a registration statement or any post-effective amendment, when the
same has become effective, (ii) of the issuance by any state securities or other
regulatory authority of any order suspending the qualification or exemption from
qualification of any of the Restricted Shares under state securities or blue sky
laws or the initiation of any proceedings for that purpose, and (iii) of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing and, at the request of any Participating
Shareholder, prepare, file and furnish to such Participating Shareholder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(f) if the Company has delivered preliminary or final
prospectuses to any Participating Shareholder and after having done so the
prospectus is amended to comply with the requirements of the Securities Act, the
Company shall promptly notify such Participating Shareholder and, if requested,
the Participating Shareholder shall immediately cease making offers of
Restricted Shares and return all prospectuses to the Company. The Company shall
promptly provide the Participating Shareholder with revised prospectuses and,
following receipt of the revised prospectuses, the Participating Shareholder
shall be free to resume making offers of the Restricted Shares;
(g) furnish, at the request of the Participating Shareholder
on the date such Restricted Shares are delivered to the underwriters for sale in
connection with a registration pursuant to this Article 2, if such Restricted
Shares are being sold through underwriters, or, if such Restricted Shares are
not being sold through underwriters, on the date that the registration statement
with respect to such Restricted Shares becomes effective, (i) an opinion, dated
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Participating Shareholders and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and the Participating Shareholders;
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(h) if any proposed registration effected pursuant to Section
2.1 or Section 2.2 involves an underwritten public offering, (i) subject to
Section 2.1, select a reputable managing underwriter to underwrite such public
offering, (ii) cause all Restricted Shares to be listed for trading on the
principal national securities exchange (including, without limitation, the
NASDAQ National Market System) (as defined in the Securities and Exchange Act of
1934, as amended) where the Company's Stock is listed for trading, and (iii)
enter into (x) an underwriting agreement with the underwriter providing for such
representations, warranties, covenants, conditions and indemnities as may be
requested by the underwriter and (y) a deposit agreement with a depositary, if
applicable, providing for such representations, warranties, covenants,
conditions and indemnities as may be requested by the depositary;
(i) before filing a registration statement or amendment
thereto, furnish to each Participating Shareholder and its counsel and other
representatives and the underwriters, if any, copies of each such registration
statement or amendment proposed to be filed, which documents shall be made
available on a timely basis for review and comment by the Participating
Shareholders, the underwriters (if any) and their respective representatives;
(j) make generally available to the Company's security holders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, as promptly as practicable, but in any event no later than
forty-five (45) days after the end of the 12-month period beginning with the
first day of the Company's first fiscal quarter commencing after the effective
date of a registration statement, which earnings statement shall cover said
12-month period, and which requirement will be deemed to be satisfied if the
Company timely files complete and accurate information on Forms 20-F and 6-K
under the Exchange Act and otherwise complies with Rule 158 under the Securities
Act;
(k) if requested by the managing underwriter or any
Participating Shareholder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or any
Participating Shareholder reasonably requests to be included therein, including,
without limitation, with respect to the Restricted Shares being sold by such
Participating Shareholder, the purchase price being paid therefor by the
underwriters and with respect to any other terms of the underwritten offering of
the Restricted Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective amendment;
(l) as promptly as practicable after filing with the SEC of
any document which is incorporated by reference into a registration statement
(in the form in which it was incorporated), deliver a copy of each such document
to each Participating Shareholder;
(m) cooperate with the Participating Shareholders and the
managing underwriter to facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends unless required under
applicable law) representing securities sold under any registration statement
(if any), and enable such securities to be in such denominations and registered
in such names as the managing underwriter or such sellers may request and keep
available and make available to the Company's transfer agent prior to the
effectiveness of such registration statement a supply of such certificates;
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(n) promptly make available for inspection by any
Participating Shareholder, any underwriter participating in any disposition
pursuant to any registration statement, and any attorney, accountant or other
agent or representative retained by any such Participating Shareholder or
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information requested by any such Inspector in
connection with such registration statement; provided, that, unless the
disclosure of such Records is necessary to avoid or correct a misstatement or
omission in the registration statement or the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
the Company shall not be required to provide any information under this
subparagraph (n) if (A) the Company believes, after consultation with counsel
for the Company, that to do so would cause the Company to forfeit an
attorney-client privilege that was applicable to such information or (B) if
either (i) the Company has requested and been granted from the SEC confidential
treatment of such information contained in any filing with the SEC of documents
provided supplementally or otherwise or (ii) the Company reasonably determines
in good faith that such Records are confidential and so notifies the Inspectors
in writing unless prior to furnishing any such information with respect to (A)
or (B) such Participating Shareholder requesting such information agrees to
enter into a confidentiality agreement in customary form and subject to
customary exceptions; and provided, further, that each Participating Shareholder
agrees that it will, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow the
Company at its expense, to undertake appropriate action and to prevent
disclosure of the Records deemed confidential;
(o) provide a CUSIP number for the Restricted Shares included
in any registration statement not later than the effective date of such
registration statement;
(p) cooperate with each Participating Shareholder and each
underwriter participating in the disposition of such Restricted Shares and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD");
(q) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(r) notify each Participating Shareholder promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
(s) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Restricted Shares;
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(t) advise each Participating Shareholder, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued;
and
(u) if the Participating Shareholders so request, to request
acceleration of effectiveness of the registration statement from the Commission,
provided at the time of such request the Company does not, in good faith,
believe it is necessary to amend further the registration statement in order to
comply with the provisions of this Section 2.4. If the Company wishes to further
amend the registration statement prior to requesting acceleration, it shall have
five (5) business days to so amend prior to requesting acceleration.
2.5 SUSPENSION OF DISPOSITIONS. Each Participating Shareholder
agrees that upon receipt of any notice (a "Suspension Notice") from the Company
of the happening of any event of the kind described in Section 2.4(e)(iii), such
Participating Shareholder will forthwith discontinue disposition of Restricted
Shares until such Participating Shareholder's receipt of the copies of the
supplemented or amended prospectus, or until it is advised in writing (the
"Advice") by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the prospectus, and, if so directed by the Company, such
Participating Shareholder will deliver to the Company all copies, other than
permanent file copies then in such Participating Shareholder's possession, of
the prospectus covering such Restricted Shares current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of registration statements set forth in
Section 2.4(b) hereof shall be extended by the number of days during the period
from and including the date of the giving of the Suspension Notice to and
including the date when each seller of Restricted Shares covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus or the Advice. The Company shall use its commercially
reasonable efforts and take such actions as are reasonably necessary to render
the Advice as promptly as practicable.
2.6 COOPERATION UPON A REGISTRATION. The Shareholders and the
Company agree that, in connection with any exercise of registration rights
pursuant to this Article 2, the Shareholders will authorize, and will authorize
and direct the Board to take, such actions as are necessary and appropriate to
effectuate such registration. In addition, each Participating Shareholder agrees
to cooperate fully with the Company and the underwriters of any underwritten
public offering in the preparation of all documentation necessary or desirable
to effectuate any registration of any Restricted Shares under the Securities Act
pursuant to this Article 2, or registration or qualification of any Restricted
Shares pursuant to Section 2.4(d) hereof. In addition, the Company agrees to
cooperate fully with the Participating Shareholders in connection with any such
registration or qualification.
2.7 LIMITATIONS. Notwithstanding anything in this Agreement to
the contrary, if requested in writing by the managing underwriter, if any, of
any underwritten public offering of the Company's capital stock pursuant to this
Article 2, each Shareholder agrees not to offer, sell, contract to sell or
otherwise dispose of any shares of capital stock of the Company except as part
of such underwritten public offering within thirty (30) days before or (i)
ninety (90) days after
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the effective date of the registration statement filed with respect to said
offering, and (ii) one hundred eighty (180) days in the case of the Company's
initial public offering, unless in each case expressly authorized to do so by
the managing underwriter; provided, however, that if any officer, director or
shareholder holding 5% or more of the share capital of the Company is not
obligated under this Section 2.7 or a similar provision in another agreement, or
if any such person is released from its obligations under this Section 2.7 or
such other agreement, and accordingly is entitled to sell its shares within the
periods set forth above, then each Class A Shareholder and each Class B
Shareholder shall also be entitled to sell a pro rata amount of its shares in
proportion to the ratio that the number of shares held by such persons that are
not obligated under this Section 2.7 or a similar provision in another agreement
or is otherwise released from such obligation bears to the total number of
shares subject to such obligation.
2.8 EXPENSES. The Company shall pay all expenses incurred by
the Company in complying with Sections 2.1, 2.2 and 2.4 hereof, including,
without limitation, all registration and filing fees (including all expenses
incident to filing with the NASD), fees and expenses of complying with the
securities or blue sky laws of all such jurisdictions in which the Restricted
Shares are proposed to be offered and sold (including reasonable fees and
disbursements of counsel in connection with blue sky qualification of Restricted
Shares), rating agency fees, printing expenses, messenger and delivery expenses,
the Company's internal expenses (including without limitation all salaries and
expenses of its officers and employees performing legal or accounting duties),
fees and expenses incurred in connection with any listing of the Restricted
Shares, fees and expenses of counsel for the Company and its independent
certified public accountants (including the expenses of any special audit or
cold comfort letters required by or incident to such performance), securities
act liability insurance (if the Company elects to obtain such insurance) and
fees and disbursements of underwriters (to the extent the Company is liable
therefor under the terms of any underwriting agreement), whether or not any
registration statement becomes effective; provided, however, that all
underwriting discounts and selling commissions applicable to the Restricted
Shares covered by registrations effected pursuant to Section 2.1 or Section 2.2
hereof shall be borne by the Participating Shareholders, in proportion to the
number of Restricted Shares sold by each such Participating Shareholder, and
except as expressly provided in this Section 2.8, in no event shall the Company
pay any fees or expenses attributable to any counsel, accountants or other
persons retained or employed by the Participating Shareholders. Further to the
foregoing, the Company shall pay all reasonable and customary expenses incurred
by any Participating Shareholder, including, without limitation, all reasonable
expenses and fees of one (1) firm of counsel for all Participating Shareholders
(which shall be selected by a majority (based on the number of Restricted
Securities to be sold) of the Participating Shareholders), plus, to the extent
reasonably necessary, one (1) firm of local counsel for all of the Participating
Shareholders in each state or country where reasonably necessary (the
"Expenses").
2.9 INDEMNIFICATION.
(a) In the event of any registration of any Restricted Shares
under the Securities Act pursuant to this Article 2 or registration or
qualification of any Restricted Shares pursuant to Section 2.4(d) hereof, the
Company shall indemnify and hold harmless each Participating Shareholder, each
underwriter of such shares, if any, each broker or any other person acting on
behalf of the Participating Shareholders, each director, officer, employee and
10
partner of any of the foregoing and each other person, if any, who controls any
of the foregoing persons, within the meaning of the Securities Act (each, an
"Indemnified Person"), against any losses, claims, damages, liabilities or
expenses, joint or several, to which any of the foregoing persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of, are related
to, result from or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement under which
such Restricted Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or any document incident to registration or qualification of any
Restricted Shares pursuant to Section 2.4(d) hereof, or arise out of, are
related to, result from or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or, with respect to any prospectus,
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or any violation by the Company of the
state securities or blue sky laws applicable to the Company and relating to
action or inaction required of the Company in connection with such registration
or qualification under such state securities or blue sky laws and the Company
shall reimburse on demand each Indemnified Person for any legal or any other
costs and expenses reasonably incurred by any of them in connection with
investigating, preparing for, defending or settling any such loss, claim,
damage, liability or action by any governmental agency or body; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in said registration statement, preliminary or final
prospectus or amendment or supplement thereto or any document incident to
registration or qualification of any Restricted Shares pursuant to Section
2.4(d) hereof, in reliance upon and in conformity with written information
furnished to the Company by any Participating Shareholder, underwriter, broker,
other person or controlling person specifically for use in the preparation
thereof or arises out of or is based upon the Indemnified Person's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Indemnified Person with
a sufficient number of copies of the same; provided further, that the Company
shall not be liable for any settlement made without its prior written consent,
such consent not to be unreasonably withheld.
(b) Before Restricted Shares shall be included in any
registration pursuant to this Article 2, each Participating Shareholder will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any registration statement and
prospectus, and each such Participating Shareholder and any underwriter acting
on its behalf shall have agreed to indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) above) the Company,
each director of the Company, each officer of the Company who signs such
registration statement, every other Participating Shareholder and any person who
controls the Company within the meaning of the Securities Act, with respect to
any untrue statement or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, if such untrue statement or omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Participating Shareholder or such underwriter specifically for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus or amendment or supplement; provided, however, that
11
the maximum amount of liability in respect of such indemnification shall be
limited to an amount equal to the net proceeds actually received by such
Participating Shareholder from the sale of Restricted Shares effected pursuant
to such registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in Section
2.9(a) or (b) hereof, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 2.9, give prompt
written notice to the latter of the commencement of such action (provided that
the failure to give such notice shall not limit the rights of such indemnified
party unless and to the extent such failure is prejudicial to its ability to
defend such action). In case any such action is brought against an indemnified
party, the indemnifying party will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and, after notice to such indemnified party from the
indemnifying party of its election to assume the defense thereof; provided,
however, that, if any indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to such indemnified party
which are different from, in conflict with or additional to those available to
the indemnifying party, or that such claim or litigation involves or could
reasonably be expected to have an effect upon matters beyond the scope of the
indemnity agreement provided in this Section 2.9, or if the indemnifying party
fails to take diligent action to defend such claim within twenty (20) days
following notice thereof from the indemnified party, the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
indemnified party, or that such claim or litigation involves or could have an
effect upon matters beyond the scope of the indemnity agreement provided in this
Section 2.9, or if the indemnifying party fails to take diligent action to
defend such claim within twenty (20) days following notice thereof from the
indemnified party, and such indemnifying party shall reimburse such indemnified
party and any person controlling such indemnified party for the fees and
expenses of counsel retained by the indemnified party which are reasonably
related to the matters covered by the indemnity agreement provided in this
Section 2.9. If the indemnifying party does assume its own defense, from such
time the indemnified party shall bear the expenses of its own separate counsel.
If such defense is not assumed by the indemnifying party as permitted hereunder,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its written consent, which consent shall
not be unreasonably withheld. If such defense is assumed by the indemnifying
party pursuant to the provisions hereof, such indemnifying party shall not make
any settlement of the applicable claim indemnified against hereunder without the
written consent of the indemnified party or parties, which consent shall not be
unreasonably withheld. An indemnifying party that is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party and any other such indemnified party with respect to such
claim, unless in the reasonable judgment of any indemnified party, a conflict of
interest may exist between such indemnified party with respect to such claim, in
which event the indemnifying party shall be obligated to pay the reasonable fees
and disbursements of such additional counsel or counsels.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which an Indemnified
Person makes a claim for indemnification pursuant to this Section 2.9, but it is
judicially determined (by the entry of a final
12
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced notwithstanding the fact that this Section
2.9 provides for indemnification in such case, then the Company and the
Participating Shareholder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject as is appropriate to
reflect, as between the indemnifying party, on the one hand, and the indemnified
party on the other hand, the relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, it being understood that the parties acknowledge that the
overriding equitable consideration to be given effect in connection with this
provision is the ability of one party or the other to correct the statement or
omission which resulted in such losses, claims, damages or liabilities, and that
it would not be just and equitable if contribution pursuant hereto were to be
determined by pro rata allocation or by any other method of allocation which
does not take into consideration the foregoing equitable considerations.
Notwithstanding the foregoing, (i) the Participating Shareholder will not be
required to contribute any amount in excess of the proceeds to it of all
Restricted Shares sold by it pursuant to such registration statement, (ii) no
underwriter shall be required to contribute any amount in excess of the proceeds
to it from the offering pursuant to such registration statement, and (iii) no
person or entity guilty of fraudulent misrepresentation, within the meaning of
Section 11(f) of the Securities Act, shall be entitled to contribution from any
person or entity who is not guilty of such fraudulent misrepresentation. If
indemnification is available under this Section 2.9, the indemnifying parties
shall indemnify each indemnified party to the full extent provided in Section
2.9(a) and 2.9(b) without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable consideration provided for in
this Section 2.9(d).
(e) Notwithstanding any of the foregoing, if in connection
with an underwritten public offering of any Restricted Shares, the Company, the
Participating Shareholder and the underwriters enter into an underwriting or
purchase agreement relating to such offering which contains provisions covering
indemnification among the parties, the indemnification provided thereunder shall
be in addition to (and not in lieu of) the indemnification provided to the
Shareholders hereunder.
(f) The indemnification and contribution required by this
Section 2.9 shall be made by periodic payment of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred; provided, that if a court of
competent jurisdiction finally determines that any Indemnified Person which has
received payments hereunder does not have an indemnification right under Section
2.9 for any reason, then such Indemnified Person shall within five (5) days of
such final determination, refund all amounts received hereunder to the Company.
(g) The indemnification and contribution provided for
hereunder will remain in full force and effect regardless of any investigation
made by or on behalf of any Indemnified Person and will survive the transfer of
securities.
ARTICLE 3. MISCELLANEOUS
13
3.1 NOTICES. Any and all notices, designations, consents,
offers, acceptances, or any other communication required or permitted to be
given by any provision of this Agreement shall be deemed to be sufficient if
contained in a written instrument delivered in person or duly sent by registered
mail or telecopied with acknowledgment of receipt sent by telecopier, registered
mail or delivered in person, as the case may be, to such party at the address or
telecopier number, as the case may be, set forth on the signature pages hereto
or to such other address or telecopier number, as the case may be, as such party
may from time to time designate in writing to the other parties. All such
notices, requests, consents and other communications shall be deemed to have
been received: (a) in the case of personal delivery or registered mail, on the
date of receipt; or (b) in the case of telecopying, on the date of
acknowledgment thereof.
3.2 AMENDMENT AND WAIVER. No change or modification of, or
waiver of compliance with, this Agreement shall be valid unless the same shall
be in writing and signed by all of the parties hereto which hold at least 50,000
shares of the Stock, on an as-converted basis.
3.3 TERMINATION. This Agreement may be terminated at any time
by an instrument in writing signed by all of the parties hereto. This Agreement
shall terminate automatically as to any Shareholder which transfers all of its
Restricted Shares. Unless sooner terminated, this Agreement shall terminate
eight (8) years from the date hereof, unless, at any time within one (1) year
prior to such date, all of the parties extend its duration for as many
additional periods, each not to exceed eight (8) years, as they may desire.
3.4 NO WAIVER. No failure or delay on the part of the
Shareholders or any of them in exercising any right, between the Company and the
Shareholders or any of them shall operate as a waiver thereof nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the simultaneous or later exercise of any other right, power or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which the Shareholders or any of them would otherwise
have. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Shareholders or any of
them to take any other or further action in any circumstances without notice or
demand.
3.5 SPECIFIC PERFORMANCE. Each party to this Agreement
acknowledges that the other parties will suffer irreparable injury in the event
of any breach of any provision of this Agreement and that therefore the remedy
at law for any breach or threatened breach of any such provision of this
Agreement will be inadequate. Accordingly, upon a breach or threatened breach of
any such provision of this Agreement by any party hereto, the other parties
shall, in addition and without prejudice to any of the rights and remedies they
may have, be entitled as a matter of right, without proof of actual damages, to
seek specific performance of such provisions of this Agreement and to such other
injunctive or equitable relief to enforce, or prevent any violations (whether
anticipatory, continuing or future) of, such provisions of this Agreement.
3.6 COUNTERPARTS AND HEADINGS. This Agreement may be executed
in two or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument. All
headings and any cover page or table of
14
contents are inserted for convenience or reference only and shall not affect its
meaning or interpretation.
3.7 NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.
3.8 EXPENSES. Except as provided in Section 2.8 hereto, each
of the parties to this Agreement shall bear its own expenses, including, without
limitation, the fees and disbursements of its respective counsel, in connection
with the negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby.
3.9 GOVERNING LAW. This Agreement will be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
U.S.A., without regard to its conflict of law rules.
3.10 SUBMISSION TO JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of any federal or state court located within the
Borough of Manhattan, State of New York over any dispute arising out of or
relating to this Agreement or any of the transactions contemplated hereby and
each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action or proceeding related thereto may be heard and determined in
such courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby consents to process
being served by any party to this Agreement in any suit, action or proceeding by
the mailing of a copy thereof in accordance with the provisions of Section 3.1
hereof.
3.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the Company and its successors, and each
of the Shareholders and their respective executors, administrators and personal
representatives and heirs and their successors and assigns.
3.12 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable, the remaining provisions hereof shall
nevertheless continue in full force and effect as though the illegal, invalid or
unenforceable provisions were not a part hereof, and the parties shall exert
their best efforts to amend this Agreement to include a provision which is
legal, valid and enforceable and which carries out the original intent of the
parties.
3.13 COMPLETE AGREEMENT. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior and
15
contemporaneous arrangements or understandings, whether written or oral, between
or among any of the parties hereto, with respect to the subject matter hereof.
3.14 FURTHER ASSURANCES. Each of the parties to this Agreement
agrees to execute such other documents and take such other action as may be
reasonably necessary to implement and carry out the intent of this agreement.
3.15 CONFIDENTIALITY. Each Shareholder (other than Intel
Atlantic, Inc.) covenants and agrees to treat any non-public information
provided to it by the Company concerning the business and finances of the
Company ("Corporate Information") as confidential and agrees further that it
will not use, exploit, reproduce, disclose or provide Corporate Information to
any third party (other than any agents of the Shareholder who are bound by
substantially similar obligations of confidentiality) on its own behalf or
otherwise, except with the consent of the Company or as required by law, legal
process or any federal or state regulatory body having jurisdiction over such
Shareholder. The provisions of this Section 3.15 shall not apply to any
information which:
(a) was within the public domain prior to the time of
disclosure of Corporate Information to the Shareholder or which comes into the
public domain other than as a result of a breach by the Shareholder of this
Section 3.15;
(b) was in the possession of the Shareholder (or any of its
officers, directors, employees, agents, principals, or affiliates) before the
Shareholder received the Corporate Information;
(c) was rightfully acquired by the Shareholder from a third
party without, to the knowledge of the Shareholder, any restriction or any
obligation of confidentiality; or
(d) was independently developed by the Shareholder without any
use or reference to the Corporate Information.
The provisions of this Section 3.15 shall survive the
termination of this Agreement, either in whole or as to any Shareholder, for a
period of two (2) years.
The obligations of Intel Atlantic, Inc., with respect to the
treatment of Corporate Information are set forth in Exhibit A hereto.
[Rest of Page Intentionally Left Blank]
16
WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
EL SITIO, INC.
By: _____________________________________
Title:
Notice Address:
Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xxxxxxx Xxxxxxx-Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
IAMP (EL SITIO) INVESTMENTS LTD.
By:
----------------------------------------
Title:
Notice Address:
c/o 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X.X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: L. Xxxxx X'Xxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXXX ENTERPRISES INC.
By:
--------------------------------------
Title:
Notice Address:
c/o 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X.X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: L. Xxxxx X'Xxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
CHESTNUT HILL (EL SITIO), LLC
By:
------------------------------------------
Title:
Notice Address:
c/o GCC Investments, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx
Vice President and General Counsel
GC Companies, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
TOWER PLUS INTERNATIONAL CORP.
By:
----------------------------------------
Title:
Notice Address:
c/o Xxxxxxxx Xxxx Xxxxxx
Plaza Independencia 811 XX
00000 Xxxxxxxxxx, Xxxxxxx
Telephone: (0000) 000-0000
Telecopier: (0000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXX XXXXXXX-XXXXXX
By:
---------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXX X. XXXXXX
By:
------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXX X. XXXXXXX
By:
----------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXX X. XXXXX
By:
-----------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
DAMIAN SAID
By:
--------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXX X. XXXXX
By:
-------------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
JULIEN SEVAUX
By:
--------------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXX DARD
By:
--------------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXX XXXXXXXXX
By:
-------------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
MADELAINE CORP. S.A.
By:
-------------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXX X. XXXXX
By:
---------------------------------------
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Xxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
COMPANIA DE INVERSIONES MONTEVIDEO BVI
By:
----------------------------------
Title:
Notice Address:
Xxxxx Xxxxxxxxxxxxx 000/000
Xxxxxxxxxx, Xxxxxxx
Tel: (00000) 000-00-00
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
THE XXXXX X. XXXXXX TRUST OF 1996
By:
--------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, FBO XXXXX XXXXXX
By:
----------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, FBO XXXXX XXXXX XXXXXX, XX.
By:
---------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, FBO XXXXX XXXXXX XXXXXXX
By:
------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, FBO XXXXX XXXXXX XXXXXX
By:
---------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXX XXXXXX
By:
-------------------------------
Notice Address:
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
VAMAGRA S.A.
By:
---------------------------------------
Title:
Notice Address:
Piedras 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
T.V. AZTECA, S.A. DE C.V.
By:
---------------------------------------
Title:
Notice Address:
TV Azteca, S.A. de C.V.
Periferico Sur, No. 4121
Col. Xxxxxxx xx Xxxxxxxx
00000 Xxxxxx, D.F.
Attn:
Xxxxxx Xxxxxxx
Telephone: 000-000000-0000
Telecopier: 000-000000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
SUMMIT INVESTMENT MANAGEMENT LTD.
By:
------------------------------------
Title:
Notice Address:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
with a copy to:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXXXX LIMITED
By:
---------------------------------------
Title:
Notice Address:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
FUTURIT S.A.
By:
------------------------------------
Title:
Notice Address:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
QUANTUM DOLPHIN PLC
By:
------------------------------------
Title:
Notice Address:
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXX.XXX INC.
By:
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Title:
Notice Address:
Xxxxxxxx 000 Xxxx 00
Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxxxx Xxxxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (54 11) 4313
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
DUNAS OVERSEAS LTD.
By:
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Title:
Notice Address:
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[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXX XXXXX XXXXX
By:
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Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Campay
Telephone: (00 00) 0000-0000
Telecopier: (54 11) 9122, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
ELINSTAR INTERNATIONAL CORPORATION
By:
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Title:
Notice Address:
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[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXX XXXXXXXXX
By:
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Title:
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Campay
Telephone: (00 00) 0000-0000
Telecopier: (54 11) 9122, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXXX XXXXXXX DE ARECHEGA
By:
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Title:
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Xxxxxxx Campay
Telephone: (00 00) 0000-0000
Telecopier: (54 11) 9122, ext. 104
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
XXXXXX XXXXXXXXXX
By:
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Title:
Notice Address:
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[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
IMPSAT CORPORATION
By:
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Title:
Notice Address:
ImpSat Corporation
Xxxxxxx Xxxxxx 000
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxx Xxxxxx
Telephone:
Telecopier: (000) 00-000-0000
with a copy to:
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
INTEL ATLANTIC, INC.
By:
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Title:
Notice Address:
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: M&A Portfolio Manager - M/S RN6-46
Fax Number: (000) 000-0000
With copies to:
Intel Atlantic, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax Number: (000) 000-0000
[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
UTILITIVEST II, L.P.
By: Utilitivest II, L.L.C., its General Partner
By:
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Name: Hurdle X. Xxx III
Title: Vice President and Director of
Utilitivest II, L.L.C.
Notice address:
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UTILITIVEST III, L.P.
By: Utilitivest III, L.L.C., its General Partner
By: -------------------------------------------
Name: Hurdle X. Xxx III
Title: Vice President and Director of
Utilitivest III, L.L.C.
Notice address:
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[Signature Page to Amended and Restated Registration Rights Agreement - El
Sitio, Inc.]
SCHEDULE A
EXHIBIT A
November 9, 1999
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
In consideration of the purchase by Intel Atlantic, Inc. ("Intel") of
555,555.55 shares of Class B Preferred Stock of El Sitio, Inc. ("Company"),
pursuant to a Share Purchase Agreement dated November 9, 1999 (the "Purchase
Agreement"), Company and Intel agree to the terms and obligations of this letter
agreement ("Agreement").
1. CONFIDENTIALITY
(a) DISCLOSURE OF TERMS. The terms and conditions of this Agreement,
the Purchase Agreement, the Amended and Restated Shareholders Agreement, dated
November 9, 1999 and the Amended and Restated Registration Rights Agreement,
dated November 9, 1999 (collectively, the "Financing Terms"), including their
existence, shall be considered confidential information and shall not be
disclosed by the Company to any third party except in accordance with the
provisions set forth below.
(b) PRESS RELEASES, ETC. Within sixty (60) days after the closing of
the transactions contemplated by the Purchase Agreement, the Company may issue a
press release disclosing that the Investors, including Intel, have invested in
the Company; provided that the release does not disclose any of the Financing
Terms and the final form of the press release is approved in advance in writing
by the Intel. Intel's name and the fact that Intel is an investor in the Company
can be included in a reusable press release boilerplate statement, so long as
Intel has given the Company its initial approval of such boilerplate statement
and the boilerplate statement is reproduced in exactly the form in which it was
approved. No other announcements regarding Intel in a press release, conference,
advertisement, announcement, professional or trade publication, mass marketing
materials or otherwise to the general public may be made without Intel's prior
written consent.
(c) PERMITTED DISCLOSURES. Notwithstanding the foregoing, (i) the
Company may disclose any of the Financing Terms to its current or bona fide
prospective investors, employees, investment bankers, lenders, accountants and
attorneys, in each case only where such persons or entities are under
appropriate nondisclosure obligations; (ii) the Company may disclose (other than
in a press release or other public announcement described in subsection (b))
solely the fact that Intel is an investor in the Company to any third parties
without the requirement for the consent of any other party or nondisclosure
obligations; and (iii) Intel may disclose its investment in the Company and the
Financing Terms to third parties or to the public at its sole
discretion and, if it does so, the Company shall have the right to disclose to
third parties any such information disclosed in a press release or other public
announcement by Intel.
(d) LEGALLY COMPELLED DISCLOSURE. In the event that any party is
requested or becomes legally compelled (including without limitation, pursuant
to securities laws and regulations) to disclose the existence of the agreements
referenced in paragraph (a) above or any of the Financing Terms hereof in
contravention of the provisions of this letter, the Company shall provide Intel
with prompt written notice of that fact so that the appropriate party may seek
(with the cooperation and reasonable efforts of the other) a protective order,
confidential treatment or other appropriate remedy. In such event, the Company
shall furnish only that portion of the information which is legally required and
shall exercise reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded such information to the extent reasonably requested
by Intel.
(e) OTHER INFORMATION. The provisions of this Letter Agreement shall be
in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by any of the parties hereto with respect to
the transactions contemplated hereby. Additional disclosures and exchange of
confidential information between the Company and Intel Corporation shall be
governed by the terms of the Corporate Non-Disclosure Agreement No. 7626010,
dated October 18, 1999, executed by the Company and Intel, and any Confidential
Information Transmittal Records (CITR) provided in connection therewith.
(f) All notices required under this section shall be made pursuant to
Section 9.10 of the Purchase Agreement.
2. MISCELLANEOUS.
2.1 DEFINITIONS. All capitalized terms used but not otherwise defined
in this Agreement have the meaning defined for such terms in the Purchase
Agreement.
2.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
2.3 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
2.4 AMENDMENTS AND WAIVERS. This Agreement may not be amended or
modified without the written consent of Intel and the Company, nor shall any
waiver be effective against any party unless in a writing executed on behalf of
such party.
2.5 SEVERABILITY. If any provision of this Agreement shall be declared
void or unenforceable by any judicial or administrative authority, the validity
of any other provision and of the entire Agreement shall not be affected
thereby.
The parties hereto have executed this Agreement on the day and year first
written above.
EL SITIO, INC. INTEL ATLANTIC, INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
-------------------------------- ---------------------------------
Title: Title:
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