Exhibit 10.10
EXCLUSIVITY AND KEY PARTNER CONTRACTS AGREEMENT
This EXCLUSIVITY AND KEY PARTNER CONTRACTS AGREEMENT (this "AGREEMENT")
is made as of this 31st day of July, 2002 by and among America Online Latin
America, Inc., a Delaware corporation having its principal place of business at
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the
"CORPORATION"), America Online, Inc., a Delaware corporation having its
principal place of business at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000 ("AOL"),
Aspen Investments LLC, a Delaware limited liability company having its principal
place of business at 000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000
("ASPEN"), and Atlantis Investments LLC, a Delaware limited liability company
having its principal place of business at 000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxx 00000 ("ATLANTIS", and together with Aspen, "ODC" with such term
being further defined in the Corporation's Restated Certificate of
Incorporation, as the same may be amended or restated from time to time (the
"RESTATED CERTIFICATE OF INCORPORATION")). Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Restated
Certificate of Incorporation.
WHEREAS, AOL and ODC are principal stockholders of the Corporation;
WHEREAS, each of AOL and ODC desire to enter into this Agreement to
protect its investment in the Corporation; and
WHEREAS, the Corporation has agreed with each of AOL and ODC to certain
restrictions with respect to the Corporation's entering into any Key Partner
Contract or Exclusivity Contract, as each such term is defined below;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions herein contained, the parties hereto hereby agree as
follows:
1. The Corporation agrees not to enter into any Key Partner Contract or
Exclusivity Contract prior to notifying each of AOL and ODC. Such notice shall
be provided by the Corporation setting forth in writing in the biweekly deal
pipeline provided to AOL and ODC each Key Partner Contract and Exclusivity
Contract that the Corporation proposes to enter into within the next thirty (30)
days and, with respect to any such Exclusivity Contract, specifying therein that
such contract is an Exclusivity Contract. The details of such Exclusivity
Contracts will be discussed in a biweekly meeting with a representative of each
of the Corporation, AOL and ODC.
2. For the purposes hereof, "Exclusivity Contract" shall mean any
contract entered into by the Corporation or any Subsidiary which by its terms
would prohibit the Corporation or any Subsidiary from entering into subsequent
contracts with other Persons.
3. For the purposes hereof, "Key Partner Contract" shall mean any
contract with a Person (or with a Person that is fifty percent (50%) or more
owned by such Person) with whom
AOL has, or has had within the preceding six (6) months, a contractual
relationship and as to which AOL has notified the Corporation in writing of such
relationship prior to the time that the Corporation or any Subsidiary enters
into the proposed contract, but in no event to exceed one hundred (100) Persons
at any one time, and provided that such written notice shall not be modified
more than once during any three (3) month period.
4. This Agreement shall terminate upon the occurrence of a Class B
Triggering Event or Class C Triggering Event.
5. This Agreement reflects the present agreement of the parties hereto
and shall be binding upon and enforceable against the parties hereto.
6. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to its principles of conflicts
of law.
7. Any term of this Agreement may be amended or waived only with the
written consent of each of the parties hereto.
8. This Agreement may be executed in any number of counterparts and
delivered by facsimile transmission, each of which shall be an original, but all
of which together shall constitute one and the same instrument.
9. All notices and other communications hereunder shall be made in
accordance with the provisions of that certain Second Amended and Restated
Stockholders' Agreement dated as of March 8, 2002 (as amended, supplemented or
otherwise modified from time to time) by and among the Corporation, AOL, Aspen,
Atlantis and, for limited purposes, AOL Time Warner Inc.
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IN WITNESS WHEREOF, the parties have caused this Exclusivity and Key
Partner Contracts Agreement to be duly executed and delivered as of the day and
year first above written.
AMERICA ONLINE LATIN AMERICA, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: XXXXXXX XXXXXXXXX
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Title: CEO
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AMERICA ONLINE, INC.
By: /s/ XXXXXX X. XXXX
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Name: XXXXXX X. XXXX
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Title: EVP & CFO
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ASPEN INVESTMENTS LLC
By: /s/ XXXXXXXX XXXXXXXX
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Name: XXXXXXXX XXXXXXXX
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Title: EXECUTIVE VICE PRESIDENT
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ATLANTIS INVESTMENTS LLC
By: /s/ XXXXXXXX XXXXXXXX
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Name: XXXXXXXX XXXXXXXX
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Title: EXECUTIVE VICE PRESIDENT
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