Exhibit 99.6
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (THIS "TERMINATION AGREEMENT") IS MADE AND
EXECUTED AS OF THE 7TH DAY OF NOVEMBER 2001, BY AND AMONG STARMEDIA NETWORK,
INC., A DELAWARE CORPORATION ("STARMEDIA"), ADNET, S. DE C.V. A SOCIEDAD DE
RESPONSABILIDAD LIMITADA DE CAPITAL VARIABLE ORGANIZED IN MEXICO ("ADNET"),
GRUPO MVS, S.A., DE C. V., A SOCIEDAD ANONIMA DE CAPITAL VARIABLE ORGANIZED
IN MEXICO ("MVS"), XXXXX XXXXXX PUBLICIDAD, S.A. DE C.V., A SOCIEDAD ANONIMA
DE CAPITAL VARIABLE ORGANIZED IN MEXICO (THE "MOLLER GROUP") (THE MVS GROUP
AND THE MOLLER GROUP, TOGETHER, THE "STOCKHOLDERS"), AND XXXXXXX XXXXXX, AN
INDIVIDUAL RESIDENT OF MEXICO CITY, MEXICO ("MOLLER"). CAPITALIZED TERMS USED
HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE DEFINITION SET FORTH IN THAT
CERTAIN STOCK PURCHASE AGREEMENT BY AND AMONG STARMEDIA, MVS, AND MOLLER
GROUP DATED AS OF JANUARY 31, 2000, AS AMENDED BY THOSE CERTAIN LETTER
AGREEMENTS DATED FEBRUARY 11, 2000 AND MARCH 29, 2000 (AS SO AMENDED, THE
"STOCK PURCHASE AGREEMENT"). STARMEDIA, ADNET, MVS, THE MOLLER GROUP AND
MOLLER MAY HEREIN BE REFERRED TO BELOW AS THE "PARTIES" (PLURALLY) OR ANY OF
THEM AS A "PARTY" (SINGULARLY).
RECITALS:
A. Whereas, StarMedia, Adnet and the Stockholders entered into the
Stock Purchase Agreement;
B. Whereas, pursuant to the Stock Purchase Agreement, at the Closing
on April 6, 2000 StarMedia purchased all the capital stock of
Adnet from the Stockholders and paid $5,000,000 in cash and
issued to the Stockholders 469,577 shares of StarMedia Common
Stock (the "Closing Shares");
C. Whereas at the Closing, (a) Adnet and Xxxxxxx Xxxxxx entered into
that certain Employment Agreement dated as of April 6, 2000 (the
"Moller Employment Agreement"), (b) Adnet and MVS entered into
that certain Advertising Services Agreement dated as of April 6,
2000 (the "MVS Advertising Agreement"), (c) Adnet and Moller
Group entered into that certain Services Agreement dated as of
April 6, 2000 (the "Moller Services Agreement"), and (d)
StarMedia and MVS entered into that certain Advertising Services
Agreement dated as of April 6, 2000 (the "StarMedia/MVS
Advertising Agreement");
D. Whereas, pursuant to the earnout calculation and payment
provisions contained in Sections 2.6 and 2.7 of the Stock
Purchase Agreement, since the Closing, StarMedia has issued to
the Stockholders an aggregate of 948,367 shares of StarMedia
Common
Stock as additional earnout payments with respect to revenues
generated by Adnet during the period from the Closing to
September 30, 2000 (the "Past Earnout Shares"); and
E. Whereas, StarMedia and the Stockholders each desire to settle all
current earnout payment obligations of StarMedia to the
Stockholders, to terminate any future obligations of StarMedia to
make additional earnout payments under the Stock Purchase
Agreement, and to terminate the Moller Employment Agreement, MVS
Advertising Agreement, the Moller Services Agreement, and the
StarMedia/MVS Advertising Agreement under the terms set forth in
this Termination Agreement;
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
PAYMENTS; COVENANTS.
1.1 Within five business days following the date hereof, StarMedia
shall issue and deliver to the Stockholders 8,000,000 shares of Common Stock
(the "Final Earnout Shares") in full satisfaction of StarMedia's obligations
under Sections 2.5 through 2.12, inclusive, of the Stock Purchase Agreement;
PROVIDED HOWEVER, that 400,000 of the Final Earnout Shares (the "Escrow Shares")
shall instead be delivered to a mutually-agreeable U.S. national bank (pursuant
to an escrow agreement to be prepared by StarMedia) to act as escrow agent (the
"Escrow Agent"), which shall hold the Escrow Shares until March 21, 2002, to
secure the Stockholders' and Moller's obligations under this Termination
Agreement. The Final Earnout Shares shall be deemed issued pursuant to Sections
2.7 and 2.8 of the Stock Purchase Agreement, and, except as modified pursuant to
Section 1.2 below, shall be subject to the restrictions and covenants applicable
to shares issued pursuant to the Stock Purchase Agreement; PROVIDED HOWEVER,
that the Final Earnout Shares shall not be subject to the one-year restriction
on resale contained in Section 2.9(b)(ii) of the Stock Purchase Agreement.
Further, the Stockholders covenant and agree that they shall not sell more than
(a) 1,000,000 of the Final Earnout Shares during any 14 day period or (b) in any
single trading day, more than 20% of the average trading volume in StarMedia
common stock for the immediately preceding five trading days.
1.2 For a period of 12 months after the date hereof, StarMedia shall,
and shall use reasonable efforts to cause its officers to, and Moller and each
of the Stockholders shall, and shall use reasonable efforts to cause their
respective officers, directors, managers and principal
employees to, provide prompt assistance as requested by StarMedia or any
Stockholder, in any review of StarMedia's or Adnet's historical operations.
AMENDMENTS TO STOCK PURCHASE AGREEMENT.
2.1 The Stock Purchase Agreement is hereby amended by terminating all
obligations of the parties to the Stock Purchase Agreement accruing after the
date hereof under each of the following sections: Sections 2.5, 2.6, 2.7, 2.8,
2.10, 2.11 and 2.12 (collectively, the "Earnout Sections"). It is hereby
acknowledged and agreed that each of the parties shall be deemed to have
satisfied in full their respective obligations under the Earnout Sections
accrued through the date hereof. All other provisions of the Stock Purchase
Agreement shall remain in full force and effect in accordance with their terms,
provided, however, that StarMedia and the Stockholders acknowledge and agree
that each has satisfied all their obligations accrued to date under the Stock
Purchase Agreement and, except as otherwise provided hereunder and except for
any Non-Release Matters, upon the execution of the transactions described in
Section 1.1 hereinabove, effective May 6, 2002 all pending matters, accounts,
interest and obligations between them shall be finally and definitively settled.
On or prior to May 6, 2002, StarMedia shall prepare and deliver to the
Stockholders a list of any matters, or description of relevant facts, relating
to potential claims or liabilities that StarMedia reasonably believes relates to
acts or omissions of the Stockholders or Moller (the "Non-Release Matters").
2.2 With the exception of any claim relating to the execution of this
Termination Agreement, and except for any Non-Release Matters, effective May 6,
2002 StarMedia and the Stockholders each disclaim and expressly waive forever
any rights, actions, demands or claims of any nature that any of them may have,
now or in the future, which have accrued to date against the other(s), and
StarMedia and the Stockholders each commit not to assert against any of the
other(s) any right of whatever nature accrued to date under the Stock Purchase
Agreement, or any other written or oral agreements made between them in
connection therewith.
TERMINATION OF CERTAIN AGREEEMENTS.
3.1 Adnet and Moller hereby terminate the Moller Employment Agreement
as of the date hereof, which termination shall be deemed for all purposes to be
a mutually agreed upon termination.
3.2 Adnet and MVS hereby terminate the MVS Advertising Agreement as of
the date hereof.
3.3 Adnet and Moller Group hereby terminate the Moller Services
Agreement as of the date hereof.
3.4 StarMedia and MVS hereby terminate the StarMedia/MVS Advertising
Agreement as of the date hereof.
3.5. Except for any Non-Release Matters, effective May 6, 2002 the
parties acknowledge and agree that all pending matters, accounts and interest
between them shall be finally and definitively settled and, accordingly, all the
agreements referred to in Sections 3.1, 3.2, 3.3 and 3.4 above (the "ANCILLARY
AGREEMENTS") as well as any outstanding account, xxxx, invoice, debt, service
and/or obligation of any of the parties in connection with any such Ancillary
Agreements, shall be and are hereby definitively and completely canceled and
terminated without any further legal or conventional effect or binding force on
the parties and without any further responsibility, obligation for or liability
to any of the parties.
3.6 Except for any Non-Release Matters, effective May 6, 2002 all the
parties disclaim and expressly waive forever any rights, actions, demands or
claims of any nature that any of them may have, now or in the future, against
any of the other parties in connection with the Ancillary Agreements and all the
parties commit not to assert against any of the other parties any right of
whatever nature in connection with the Ancillary Agreements, or any other
written or oral agreements made between any of the parties in connection with
any of such Ancillary Agreements, or in connection with any account, xxxx,
invoice, debt, service and/or obligation of any of them relating thereto.
MISCELLANEOUS.
4.1 GOVERNING LAW.
This Termination Agreement shall be interpreted, construed and enforced
in accordance with the laws of the State of New York, applied without giving
effect to any conflicts of law principles.
4.2 CAPTIONS.
The captions or headings in this Termination Agreement are made for
convenience and
general reference only and shall not be construed to describe, define or limit
the scope or intent of the provisions of this Termination Agreement.
4.3 SEVERABILITY.
The provisions of this Termination Agreement shall be deemed severable
and if any portion shall be held invalid, illegal or unenforceable for any
reason, the remainder of this Termination Agreement shall be effective and
binding upon the parties.
4.4 ENTIRE AGREEMENT.
The Stock Purchase Agreement, as amended by this Termination Agreement,
contains the entire agreement of the parties hereto with respect to the subject
matter contained therein and supersedes any and all prior or contemporaneous
negotiations, understandings or agreements between the parties hereto, written
or oral, with respect to the transactions contemplated hereby. This Termination
Agreement may not be changed or terminated orally, but may only be changed by an
agreement in writing signed by all parties hereto.
4.5 NO RULE OF CONSTRUCTION.
The parties acknowledge that this Termination Agreement was initially
prepared by StarMedia solely as a convenience and that all parties hereto and
their counsel have read and fully negotiated all the language used in this
Termination Agreement. The parties acknowledge and agree that because all
parties hereto and their counsel participated in negotiating and drafting this
Termination Agreement, no rule of construction shall apply to this Termination
Agreement which construes any language, whether ambiguous, unclear or otherwise,
in favor of, or against any party by reason of that party's role in drafting
this Termination Agreement.
4.6 NO OMISSION.
There has been no omission of material fact by any of the parties in
connection with this Termination Agreement, the Stock Purchase Agreement and the
Ancillary Agreements.
4.7 COUNTERPARTS.
This Termination Agreement may be executed in several counterparts,
each of which, when so executed, shall be deemed to be an original, and such
counterparts shall, together, constitute and be one and the same instrument.
4.8 BINDING EFFECT.
This Termination Agreement shall be binding on and shall inure to the
benefit of the parties hereto, and their successors, and permitted assigns.
Subject to the foregoing sentence, no person not a party hereto shall have any
right under or by virtue of this Termination Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Termination Agreement on the day and year first above written.
StarMedia Network, Inc.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President & CEO
Xxxxx Xxxxxx Publicidad, S.A. de C.V.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
Adnet, S. de X.X. de C.V.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: General Manager
Grupo MVS, S.A., de C. V.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President, NYS Telecom
/s/ Xxxxxxx Xxxxxx
Witness:_______________________ ------------------------------
Xxxxxxx Xxxxxx
