El Sitio, Inc. Ibero-American Media Partners II Ltd.
Avenida Ingeniero Huergo 1167 x/x Xxxxxx Xxxxxxxxxxx
X0000XXX Xxxxxx Xxxxx 000 Xxxxxxxx Xxx
Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Fax: (5411) 0000-0000 Fax: (000) 000-0000
June 26, 2001
The Shareholder Named on the
Signature Page Hereof
Re: Amendment No. 1 to the Combination Agreement
Dear Shareholder:
Reference is made to the Voting Agreement, dated as of October 29, 2000
(the "Voting Agreement"), among Ibero-American Media Partners II Ltd., a
Cayman Islands company ("IAMP"), El Sitio, Inc., a British Virgin Islands
international business company ("El Sitio"), and the shareholder named on the
signature page hereof (the "Shareholder"). Capitalized terms used but not
defined in this letter agreement (this "Letter Agreement") have the meanings
given to them in the Voting Agreement.
Attached hereto is a form of Amendment No. 1 (the "Amendment") to be
entered into as of the date hereof to the Combination Agreement, dated as
October 30, 2000 (the "Combination Agreement"), among Claxson Interactive
Group Inc. (formerly New Site Inc.), Carlyle Investments LLC ("Carlyle") and
Carlton Investments LLC ("Carlton," and, together with Carlyle, the succesors
to Newhaven Overseas Corp.), Hicks, Muse, Xxxx & Xxxxx Latin America Fund,
L.P. ("HMTF I"), Hicks, Muse, Xxxx & Xxxxx Latin America Private Fund, L.P.
("HMTF II"), HMLA 1-SBS Coinvestors, L.P. ("HMTF III" and, together with HMTF
I and HMTF II, "Xxxxx"), IAMP and El Sitio.
Please execute and deliver the signature page hereto to indicate your
acceptance of, and our mutual agreement regarding, the following terms:
Each of El Sitio and the Shareholder understands and acknowledges that
Xxxxxxx, Xxxxxxx, Xxxxx and IAMP are entering into the Amendment in reliance
upon the Shareholder's execution and delivery of this Letter Agreement. Each
of IAMP, Xxxxxxx, Xxxxxxx and Xxxxx understands and acknowledges that El Sitio
and the Shareholder are entering into the Amendment in reliance upon the
IAMP's execution and delivery of this Letter Agreement.
El Sitio, IAMP and the Shareholder hereby acknowledge that references to
"the Combination Agreement" or the "Merger" in the Voting Agreement shall
refer to the Combination Agreement and the Merger as amended by the Amendment.
Except as supplemented hereby, the provisions of the Voting Agreement are
hereby ratified and confirmed by the parties and shall remain in full force
and effect.
This Letter Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. This Letter Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and, upon the execution and delivery by the Shareholder of a
signature page hereto, shall become effective and binding upon such
Shareholder, El Sitio and IAMP.
Very truly yours,
IBERO-AMERICAN MEDIA PARTNERS II LTD.
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
EL SITIO, INC.
By: ___________________________
Name:
Title:
Accepted as of the date first written above by:
SHAREHOLDER
By: _______________________
Name:
Title:
EXECUTION COPY
AMENDMENT NO. 1 TO COMBINATION AGREEMENT
AMENDMENT NO. 1, dated as of June 26, 2001 (this "Amendment"), to the
Combination Agreement, dated as of October 30, 2000 (the "Original
Agreement"), by and among Claxson Interactive Group Inc., formerly known as
New Site Inc. ("Holdco"), Carlyle Investments LLC ("Carlyle") and Carlton
Investments LLC ("Carlton"), together the assignees of Newhaven Overseas Corp.
(together with its assignees, "Newhaven"), Ibero-American Media Partners II
Ltd. ("IAMP"), Hicks, Muse, Xxxx & Xxxxx Latin America Fund, L.P. ("HMTF I"),
Hicks, Muse, Xxxx & Xxxxx Latin America Private Fund, L.P. ("HMTF II"), HMLA
1-SBS Coinvestors, L.P. ("HMTF III," and, together with HMTF I and HMTF II,
"Xxxxx") and El Sitio, Inc. ("El Sitio").
Capitalized terms used but not defined herein shall have the meanings set
forth in the Original Agreement, except as otherwise indicated herein.
WITNESSETH
WHEREAS, the parties hereto have entered into discussions regarding
whether the conditions precedent to the obligations of the parties to complete
the Transactions are capable of being satisfied, whether a Material Adverse
Effect (as defined in the Original Agreement) has occurred with respect to El
Sitio and whether any of such parties would have a basis under the Original
Agreement for not proceeding to complete the Transactions;
WHEREAS, Holdco, Newhaven, Xxxxx, IAMP and El Sitio are all
the parties to the Original Agreement and desire to amend the Original
Agreement on the terms provided herein;
WHEREAS, Section 10.5 of the Original Agreement provides in relevant part
that the parties thereto may amend, supplement or otherwise modify the
Original Agreement only by a written instrument executed by the parties
thereto;
WHEREAS, the respective Boards of Directors of Holdco, Newhaven, Xxxxx,
IAMP and El Sitio have approved this Amendment; and
WHEREAS, concurrently with the execution and delivery of this Amendment
and as a condition and inducement to each party's willingness to execute this
Amendment, IAMP and certain shareholders of El Sitio have confirmed in writing
their obligations under the Voting Agreement with respect to the Original
Agreement, the Transactions and the other matters contemplated therein, each
as amended by this Amendment;
NOW, THEREFORE, the parties hereto agree that the Original
Agreement (including the Exhibits thereto) is, effective as of the date hereof
(the "Amendment Date"), hereby amended as follows:
SECTION 1. Amendment to Sections 2.1(b), (c), and (d) of the Original
Agreement. Sections 2.1(b), (c), and (d) of the Original Agreement are amended
and restated in their entirety as follows:
(b) Second, IAMP shall contribute all of the common stock of Imagen
Satelital S.A. to Holdco in exchange for 58,515,439 Holdco Common Shares
(the "Imagen Contribution").
(c) Third, IAMP shall contribute all of the common stock owned by IAMP of
each of Chile Sub, Canal Joven S.A., Morehaven Investments, Inc., IAMP
(El Sitio) Investments Ltd. and Kedar Enterprises Ltd. (with their
respective subsidiaries and Imagen Satelital S.A., the "IAMP
Subsidiaries") to Holdco in exchange for 71,818,488 Holdco Common Shares
(together the "IAMP Contribution"). Immediately following the Effective
Time, Holdco shall issue to IAMP two Class C Common Shares of Holdco, par
value U.S.$1.00 per share (the "C Shares"), and one Class H Common Share
of Holdco, par value U.S.$1.00 per share (the "H Share"), as additional
consideration for the IAMP Contribution.
(d) Fourth, Carlyle and Carlton shall contribute all of the capital stock
of Rainbow Heights International Ltd. ("Rainbow"), VSI US Inc. and
Iberoamerican Media Management, Inc. and all of the capital stock owned
by Carlyle and Carlton in ARTISTdirect, Inc. and AEI Collingham Holdings
Co. Ltd. (the "Hampstead Subsidiaries") to Holdco (the "Hampstead
Contribution") and Carlyle and Carlton shall contribute all of the
membership interest owned by Carlyle and Carlton in Playboy TV
International LLC (together with the Hampstead Subsidiaries, the
"Newhaven Subsidiaries") in exchange for 17,977,093 Holdco Common Shares
(the "Newhaven Contribution" and, together with the Imagen Contribution,
the IAMP Contribution and the Hampstead Contribution, the
"Contributions").
SECTION 2. Amendment to Section 3.5 of the Original Agreement. Section
3.5(b) of the Original Agreement is amended by inserting the following in lieu
of clause (ii):
the fair market value of a Holdco Common Share on the
trading day following the Effective Time. In the event that
Holdco Common Shares are not quoted on The Nasdaq National
Market ("Nasdaq") as of the trading day following the
Effective Time, the fair market value of a Holdco Common
Share shall be determined by the board of directors of
Holdco in its reasonable discretion; provided that such
determination by the board of directors shall be made by a
vote of at least two-thirds of the directors. In the event
that Holdco Common Shares are traded on Nasdaq or listed on
a national securities exchange in the U.S. as of the trading
day following the Effective Time, the fair market value of
such shares shall be deemed to be the average of the high
and low bid prices during regular trading hours (or, in the
case of such an exchange, the closing price as reported on
the consolidated transaction tape for trading during regular
trading hours) per Holdco Common Share on Nasdaq or such an
exchange for the first trading day following the date on
which the Effective Time occurs.
SECTION 3. Amendment to Section 3.13 of the Original Agreement. (a)
Section 3.13 of the Original Agreement is amended by changing the
parenthetical in the first sentence to read as follows:
(including, without limitation, the Indemnification and Contribution
Agreement, as may be amended from time to time)
(b) Section 3.13 of the Original Agreement is further amended by adding
the following sentence to the beginning of Section 3.13:
Immediately prior to the Effective Time, IAMP shall cause one
or more of its subsidiaries to distribute an aggregate amount
of U.S.$5 million to IAMP, which amount shall not be
contributed to Holdco.
SECTION 4. Amendment to Section 4.4 of the Original Agreement. Section
4.4 of the Original Agreement is amended and restated in its entirety as
follows:
4.4. Expiration of Representations and Warranties. The
respective representations and warranties of El Sitio,
Newhaven, Xxxxx and IAMP contained herein or in any
certificate or other document delivered prior to or on the
Closing Date shall expire and be terminated and extinguished
on the Closing Date, and thereafter El Sitio, Newhaven,
Xxxxx and IAMP shall have no liability whatsoever with
respect to any such representation or warranty. None of the
controlling persons, shareholders, members, legal
representatives, officers, directors or affiliates of El
Sitio, Newhaven, Xxxxx or IAMP nor any controlling person,
legal representative, heir, successor or assign of any such
officer, director or affiliate shall have any liability for
any breach of any representation, warranty, covenant or
agreement of any of El Sitio, Newhaven, Xxxxx or IAMP under
this Agreement.
SECTION 5. Amendments to Article 5 of the Original Agreement.
(a) Amendment to Section 5.2 of the Original Agreement. (i) Each
reference in Section 5.2 of the Original Agreement to "U.S.$2.5 million
individually and U.S.$10 million in the aggregate" is hereby amended to read
"U.S.$500,000 individually and U.S.$2 million in the aggregate."
(ii) Section 5.2 of the Original Agreement is amended to add the
following subsection (j):
(j) Notwithstanding anything in this Agreement to the contrary, following
the Amendment Date, none of the IAMP Subsidiaries or the Newhaven Subsidiaries
will enter into any transaction or transactions, whether or not in the
ordinary course of business or consistent with past practice, having a value
in excess of U.S.$500,000 individually and U.S.$2 million in the aggregate.
(b) Amendment to Section 5.3 of the Original Agreement. (i) Each
reference in Section 5.3 of the Original Agreement to "U.S.$2.5 million
individually and U.S.$10 million in the aggregate" is hereby amended to read
"U.S.$500,000 individually and U.S.$2 million in the aggregate."
(ii) Section 5.3 of the Original Agreement is amended to add the
following subsection (k):
(k) Notwithstanding anything in this Agreement to the
contrary, following the Amendment Date, none of El Sitio nor
any of the El Sitio Subsidiaries will enter into any
transaction or transactions, whether or not in the ordinary
course of business or consistent with past practice, having
a value in excess of U.S.$500,000 individually and U.S.$2
million in the aggregate.
(c) Amendment to Section 5.5(c) of the Original Agreement. Section 5.5(c)
of the Original Agreement is amended by adding the following to the end
thereof:
Notwithstanding anything in this Agreement to the contrary,
(i) no party shall be required, under any provision of
Article 5 of this Agreement or otherwise, to contribute,
transfer, assign, sell or convey any asset to El Sitio in
order to prevent or impede El Sitio from being a "passive
foreign investment company" within the meaning of Section
1297(a) of the Code for any period, and (ii) no party may
assert a failure to satisfy or waive any condition set forth
in Article 7 of this Agreement if such failure is due to (A)
the fact or possibility that El Sitio is or may be a
"passive foreign investment company" within the meaning of
Section 1297(a) of the Code for any period or (B) the
unwillingness of any Person to (x) make any representation
or warranty (whether or not qualified by knowledge or
similarly qualified) concerning El Sitio's status as a
"passive foreign investment company" within the meaning of
Section 1297(a) of the Code for any period or concerning the
composition of the assets or gross income of El Sitio for
purposes of determining El Sitio's status as a "passive
foreign investment company" within the meaning of Section
1297(a) of the Code for any period, (y) enter into any
covenant to take any action described in clause (i) of this
sentence or make any representation or warranty of intent to
take any such action or (z) make or accept any assumption as
to El Sitio's status as a "passive foreign investment
company" within the meaning of Section 1297(a) of the Code
for any period or concerning the composition of the assets
or gross income of El Sitio for purposes of determining El
Sitio's status as a "passive foreign investment company"
within the meaning of Section 1297(a) of the Code for any
period or as to any Person's taking or intending to take any
action described in clause (i) of this sentence.
(d) Amendment to Section 5.10(a) of the Original Agreement. The last
sentence of Section 5.10(a) of the Original Agreement is amended and restated
in its entirety as follows:
For purposes of this Section 5.10, "fair market value",
means, with respect to each Holdco Common Share, (1) if
Holdco Common Shares are listed on Nasdaq or traded on a
national securities exchange as of the applicable conversion
date, the greater of (A) U.S.$2 and (B) the average of the
daily high and low bid prices (or, in the case of a national
securities exchange, the closing price as reported on the
consolidated transaction tape for trading during regular
trading hours) per Holdco Common Share on Nasdaq or such
exchange for the 10 trading days immediately preceding the
applicable conversion date for the preferred shares or (2)
if Holdco Common Shares are not so listed or traded as of
the applicable conversion date, the greater of (C) U.S.$2
and (D) the fair market value of one Holdco Common Share, as
determined by the board of directors of Holdco in its
reasonable discretion; provided that such determination by
the board of directors shall be made by a vote of at least
two-thirds of the directors.
(e) Amendment to Section 5.11 of the Original Agreement. Section 5.11 of
the Original Agreement is hereby deleted in its entirety.
(f) Article 5 of the Original Agreement is further amended by adding the
following Section 5.14:
5.14 Insurance. From and after the Amendment Date, El Sitio
shall take all appropriate action, including but not limited
to the payment of all premiums, to ensure that all insurance
coverage of El Sitio and its directors and officers that was
in effect as of October 30, 2000, after taking into account
renewals and extensions of the relevant insurance policies,
shall continue in effect, in all material respects, through
and including the Closing Date.
SECTION 6. Amendment to Section 6.3(a) of the Original Agreement. (a)
Section 6.3(a) of the Original Agreement is hereby amended by deleting such
Section in its entirety and substituting in lieu thereof the following:
(a) At or prior to the Effective Time, Newhaven, Xxxxx and
El Sitio will take all action necessary to cause the board
of directors of Holdco immediately following the Effective
Time to include three independent directors designated by
mutual agreement of Newhaven, Xxxxx and the Founders, four
designees of Newhaven, three designees of Xxxxx, and one
designee of the Founders (in each case, until the earlier of
their resignation or removal or until their respective
successors are duly elected and qualified, as the case may
be) and be otherwise constituted as provided in the Holdco
Memorandum and Articles of Association. It is intended that
Xxxxxxx Vivo-Chaneton will be the initial chairman and chief
executive officer of Holdco and that Xxxxxx Xxxxxxxxx and
Xxxx X. Xxxxxx will be named initial vice chairmen of
Holdco, in each case, until the earlier of his respective
resignation or removal or until a successor is duly elected
and qualified, as the case may be.
SECTION 7. Amendment to Section 7.1 of the Original Agreement. Section
7.1 of the Original Agreement is amended by adding the following at the end
thereof:
(g) Nasdaq Listing. Notwithstanding Section 6.7 or any other provision of
this Agreement, approval for listing on Nasdaq of the Holdco Common Shares
shall not be a condition precedent to the obligations of each of El Sitio,
each Media Company, Newhaven or Xxxxx under this Agreement.
SECTION 8. Amendment to Section 7.2(a) of the Original Agreement. Section
7.2(a) of the Original Agreement is amended and restated in its entirety as
follows:
(a) Accuracy of Representations and Warranties. (i) All
representations and warranties of Newhaven, Xxxxx and IAMP,
as the case may be, contained herein or in any certificate
delivered to El Sitio pursuant hereto, shall have been true
and correct in all respects on and as of the Amendment Date,
with the same force and effect as though such
representations and warranties had been made on and as of
the Amendment Date, except: (A) to the extent that any such
representation or warranty is made as of a specified date,
in which case such representation or warranty shall have
been true and correct in all respects as of such date; (B)
for all representations and warranties contained in Sections
4.1(h)(i), 4.1(i), 4.2(h)(i) and 4.2(i), which shall be true
and correct only as of the date of the Original Agreement;
and (C) after giving effect to clauses (A) and (B), for all
such inaccuracies or misstatements that, individually or in
the aggregate, would not have a Material Adverse Effect on
IAMP and the IAMP Subsidiaries taken as a whole or Newhaven
and the Newhaven Subsidiaries taken as a whole.
(ii) No Extraordinary Adverse Change. Except as contemplated
by or disclosed in this Agreement or in the Exhibits or the
Disclosure Schedule of any Media Company, subsequent to the
Amendment Date, there has not occurred or arisen, any
Extraordinary Adverse Change in respect of IAMP and the IAMP
Subsidiaries taken as a whole or Newhaven and the Newhaven
Subsidiaries taken as a whole.
SECTION 9. Amendment to Section 7.2(e) of the Original Agreement. Section
7.2(e) of the Original Agreement is hereby deleted in its entirety.
SECTION 10. Amendment to Section 7.3(a) of the Original Agreement.
Section 7.3(a) of the Original Agreement is amended and restated in its
entirety as follows:
(a) Accuracy of Representations and Warranties. (i) All
representations and warranties of El Sitio contained herein
or in any certificate or document delivered to Newhaven,
Xxxxx or the Media Companies pursuant to this Agreement
shall have been true and correct in all respects on and as
of the Amendment Date, with the same force and effect as
though such representations and warranties had been made on
and as of the Amendment Date, except: (A) to the extent that
any such representation or warranty is made as of a
specified date, in which case such representation or
warranty shall have been true and correct in all respects as
of such date; (B) for all representations and warranties
contained in Sections 4.3(h)(i) and 4.3(i), which shall be
true and correct only as of the date of the Original
Agreement; (C) as set forth in the supplemental disclosure
schedule to Schedule 4.3(j) of El Sitio annexed hereto; and
(D) after giving effect to clauses (A), (B) and (C), for all
such inaccuracies or misstatements that, individually or in
the aggregate, would not have a Material Adverse Effect on
El Sitio and the El Sitio Subsidiaries taken an a whole.
(ii) No Extraordinary Adverse Change. Except as otherwise
contemplated by or disclosed in this Agreement or the
Exhibits hereto or the El Sitio Disclosure Schedule,
subsequent to the Amendment Date, there has not occurred any
Extraordinary Adverse Change in respect of El Sitio and the
El Sitio Subsidiaries taken as a whole.
SECTION 11. Amendment to Section 8.1 of the Original Agreement. Section
8.1 of the Original Agreement is amended to delete the reference to July 30,
2001 and replace such reference with June 26, 2002.
SECTION 12. Amendment to Article 9 of the Original Agreement. Except for
the first sentence of Section 9.1(a)(ii), which shall remain in full force and
effect, Article 9 of the Original Agreement is deleted in its entirety.
SECTION 13. Amendments to Section 10.13(a) of the Original Agreement. (a)
Section 10.13(a)(vii) of the Original Agreement is amended by adding the
following parenthetical to the end of clause (2):
(including, without limitation, the internet sectors of such
industries),
(b) Section 10.13(a) of the Original Agreement is further amended by
adding the following:
(iii) "Extraordinary Adverse Change" means (i) the
incurrence or existence of any liability or obligation, or
any group of directly related additional liabilities or
obligations, of any nature (whether accrued, absolute,
contingent or otherwise) by or in respect of any applicable
Person which is or are reasonably likely to exceed U.S.$30
million (after taking into account applicable insurance or
indemnity recovery rights) and which did not exist or was
not disclosed in the Disclosure Schedules (including, in the
case of El Sitio, the supplemental disclosure schedule to
Schedule 4.3(j) of El Sitio annexed hereto) prior to or on
the Amendment Date, or (ii) any change, event or
circumstance arising after the Amendment Date that affects
in a catastrophic or fundamentally adverse way the manner in
which such Person conducts, or the ability of such Person to
conduct, its business.
SECTION 14. Amendments to Exhibit A (Holdco Agreement). Capitalized terms
used in this Section 14 but not defined herein or in the Original Agreement
shall have the meanings set forth in the Holdco Agreement.
(a) Amendments to Section 1.1 of the Holdco Agreement. (i) The definition
of "5% Event" in the Holdco Agreement is hereby deleted.
(ii) The following definition will be inserted after the definition of
"Subsidiaries" appearing in Section 1.1 of the Holdco Agreement:
"3% Event" shall mean, with respect to any Holder, any time
at which the aggregate Ownership Percentage of such Holder
and its Corporate Affiliates is less than 3% and any time
thereafter (regardless of whether such Ownership Percentage
subsequently is returned to or above such level and
regardless of the cause of such event).
(b) Amendment to Holdco Agreement. The Holdco Agreement is hereby further
amended by replacing each reference to "5% Event" appearing therein with the
term "3% Event".
(c) Amendment to Section 4.1(c) of the Holdco Agreement. Section 4.1(c)
of the Holdco Agreement is hereby amended to delete the reference to 20% and
replace it with 25%.
SECTION 15. Amendments to Exhibit E-2 (Holdco Articles of Association).
Capitalized terms used in this Section 15 but not defined herein or in the
Original Agreement shall have the meanings set forth in the Holdco Memorandum
and Articles of Association. The parties agree that the Articles of
Association of Holdco, effective as of the Closing Date, shall be amended to
provide as follows:
(i) The minimum number of directors shall be eleven (11) and
the maximum shall be twelve (12). Initially, the Board shall
consist of: (A) four persons elected by the Class C Group,
voting separately as a class, who will serve as directors of
the Company until their successors are duly appointed or
elected (each, a "Carlyle or Carlton Director"), (B) one
person elected by the Class F Group, voting separately as a
class, who will serve as a director of the Company until his
successor is duly appointed or elected (the "Founders
Director"), (C) three persons elected by the Class H Group,
voting separately as a class, who will serve as directors of
the Company until their successors are duly appointed or
elected (each, a "Xxxxx Director"), (D) one person elected
by a resolution of directors who shall also be the Chief
Executive Officer of the Company, who shall serve as
Chairman of the Board and (E) three persons who are elected
by unanimous consent of the holders of Class C Common Shares
and Class H Common Shares and the holders of a majority of
the Class F Common Shares (each, an "Independent Director").
(ii) Prior to a 15% Event with respect to the applicable
Group, at any meeting of the Board, a quorum shall require,
in addition to any other requirement of applicable law, the
presence of at least one Class C Director and one Class H
Director.
(iii) Any Class C or Class H Director may appoint another
individual to act as an alternate for purposes of attending
and/or voting at meetings of the Board. Such individual may
but need not be another Director.
(iv) Any transaction having a value in excess of $250,000 in
which a Group (or any Affiliate of, or Person related to, a
member of a Group) has an interest (other than such Group's
interest in the Company) shall require, in addition to any
other approval required, the approval of a majority of
Directors who were not elected solely by such Group.
SECTION 16. Effect of Amendment. Other provisions of the Original
Agreement, the Exhibits thereto and related agreements are hereby revised to
conform to these changes mutatis mutandis. Except as amended hereby, the
Original Agreement shall remain unchanged. The Original Agreement as amended
hereby shall continue in full force and effect. Each reference to "hereof,"
"hereunder," "herein," and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in
the Original Agreement shall, after this Amendment becomes effective, refer to
the Original Agreement as amended hereby. The transactions contemplated by the
Original Agreement, as amended hereby, are collectively referred to herein as
the "Revised Transaction." Each reference to the "Transaction" or
"Transactions" shall be deemed to refer to the Revised Transaction.
SECTION 17. Representations and Warranties of Each Party to This
Amendment. Each party hereto represents and warrants to each other party
hereto, as to itself, as follows, which representations and warranties shall
be deemed to be included in the corresponding Sections of Article 4 of the
Original Agreement:
Such party has all necessary corporate or other power and
authority to execute and deliver this Amendment, to perform
its obligations hereunder, and to consummate the Revised
Transaction. The execution, delivery and performance by such
party of this Amendment and the consummation by such party
of the Revised Transaction have been duly and validly
authorized and approved by all necessary corporate or other
action. No other corporate, shareholder or member action is
necessary for the authorization, execution, delivery and
performance by such party of this Amendment and the
consummation by such party of the Revised Transaction other
than the approvals set forth in such party's Disclosure
Schedule, which corporate approvals shall have been obtained
by, and be in full force and effect on, the Closing Date.
This Amendment has been duly executed and delivered by such
party, and constitutes a valid and legally binding
obligation of such party enforceable against such party in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) or by an implied covenant
of good faith and fair dealing.
SECTION 18. Representations and Warranties of El Sitio. El Sitio
represents to each other party hereto as follows, which representations and
warranties shall be included in Section 4.3 of the Original Agreement:
(i) El Sitio has entered into amended Voting Agreements with
each of the parties to the original Voting Agreements
encompassing the matters set forth in this Amendment and the
terms of the Revised Transaction (the "Amended Voting
Agreements"), copies of which have been provided to Newhaven
and Xxxxx. References in the Original Agreement and the
Holdco Agreement to the "Voting Agreement" or "Voting
Agreements" shall refer to the Amended Voting Agreements.
(ii) The Board of Directors of El Sitio, by resolutions duly
adopted by unanimous vote of those voting at a meeting duly
called and held and not subsequently rescinded or modified
in any way, has duly (A) determined that this Amendment and
the Revised Transaction are fair to and in the best
interests of El Sitio and its shareholders and declared the
Revised Transaction to be advisable, (B) approved this
Amendment and the Revised Transaction, and (C) recommended
that the shareholders of El Sitio approve the Revised
Transaction and directed that such matter be submitted for
consideration by El Sitio's shareholders at a special
shareholders' meeting. El Sitio Board Approval constitutes
approval of this Amendment and the Revised Transaction for
purposes of Part VII of the BVI Companies Ordinance. To the
knowledge of El Sitio, no foreign or U.S. takeover statute
is applicable to this Amendment or the Revised Transaction.
(iii) El Sitio has received an opinion of Credit Suisse
First Boston, dated as of the Amendment Date to the effect
that, as of the date of such opinion, the terms of the
Revised Transaction are fair to El Sitio's stockholders,
other than IAMP and its affiliates, from a financial point
of view. Complete and correct signed copies of such opinions
will be delivered to Newhaven and Xxxxx as soon as
practicable after the Amendment Date.
(iv) As of the Amendment Date, neither El Sitio nor any of
its executive officers has knowledge of any fact or
circumstance that would entitle any of the insurance
carriers that have carried any insurance policies covering
El Sitio and its directors and officers during the last
three years to limit or avoid, in any material respect, such
carrier's obligation to pay any claim covered by such
insurance policies with respect to the legal proceedings
listed on the supplemental disclosure schedule to Schedule
4.3(j) of El Sitio annexed hereto and any related or similar
proceedings.
SECTION 19. Governing Law; Jurisdiction. This Amendment shall be governed
by and construed in accordance with the law of the State of New York, without
regard to the conflicts of law rules of such state.
SECTION 20. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures hereto were upon the same instrument.
[Rest of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed, or caused their
respective officers thereunto duly authorized to execute, this Amendment as of
the date first written above.
CLAXSON INTERACTIVE GROUP INC.
By: /s/ Xxxxx Xxxxxxx/Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx/Xxxxxxx Xxxxxx
Title: Authorized Representatives
CARLYLE INVESTMENTS LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
CARLTON INVESTMENTS LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
HICKS, MUSE, XXXX & XXXXX LATIN
AMERICA FUND, L.P.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
HICKS, MUSE, XXXX & XXXXX LATIN
AMERICA PRIVATE FUND, L.P.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
HMLA 1-SBS COINVESTORS, L.P.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
IBERO-AMERICAN MEDIA PARTNERS
II LTD.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
By: /s/ Xxxx. X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
EL SITIO, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
