Exhibit 9
VOTING AGREEMENT
Voting Agreement, dated as of March 30, 2001 (this "Agreement"), by and
among America Online Latin America, Inc., a Delaware corporation (the
"Company"), and each of the record and/or beneficial stockholders of the Company
identified on Schedule A hereto (individually, so long as owning of record
and/or beneficially any Shares, a " Voting Stockholder" and, collectively, the
"Voting Stockholders").
Whereas the Company, the Voting Stockholders and another stockholder of
the Company have, contemporaneously with the execution and delivery of this
Agreement, entered into a Stock Purchase Agreement dated as of March 30, 2001
(the "Stock Purchase Agreement") providing for the purchase by such stockholders
of shares of the Company's capital stock pursuant to the terms and conditions
thereof (capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Stock Purchase Agreement);
Whereas, as contemplated by the Stock Purchase Agreement and as
provided in the Certificate of Designations, Preferences and Rights for Series D
Redeemable Convertible Preferred Stock $.01 par value per share ("Series D
Stock"), and Series E Redeemable Convertible Preferred Stock, $.01 par value per
share ("Series E Stock"), of the Company in the form of Exhibit I hereto (the
"Certificate of Designations"), which is contemplated to be filed and to become
effective immediately prior to the issuance and sale of shares of Series D Stock
and Series E Stock and thereby to amend the Restated Certificate of
Incorporation of the Company as in effect as of the date hereof (the "Current
Certificate"), the shares of Series D Stock and Series E Stock will convert into
shares of Series B Redeemable Convertible Preferred Stock, $.01 par value per
share, and Series C Redeemable Convertible Preferred Stock, $.01 par value per
share, of the Company, respectively (the "Conversion"), immediately upon the
effectiveness of a Restated Certificate of Incorporation substantially in the
form of Exhibit II hereto (the "Restated Certificate"), after the approval by
the stockholders of the Company of a proposal to adopt the Restated Certificate;
Whereas, certain of the amendments that would be effected by the
Restated Certificate may require the approving vote of the holders of a majority
of the outstanding shares of the Company's Class A Common Stock, $.01 par value
per share (the "Class A Stock"), voting separately as a class (the "Class A
Vote"), while other amendments that would be so effected will not require the
Class A Vote (the "General Amendments");
Whereas, as an essential condition and inducement to the Company and
the Voting Stockholders to enter into the Stock Purchase Agreement and in
consideration therefor, the Company and the Voting Stockholders have agreed to
enter into this Agreement; and
Whereas, as of the date hereof, the Voting Stockholders own of record
and/or beneficially shares of the Company's capital stock as set forth opposite
their respective names on Schedule A hereto (together with all additional shares
of the Company's capital stock which any of them shall hereafter own of record
and/or beneficially, "Shares") (beneficial ownership of shares of capital stock
of the Company for purposes of this Agreement being understood and agreed to
include, without limitation, the holding of sole or shared voting power with
respect to such shares, notwithstanding the transfer of record ownership and/or
the economic benefit associated with such shares) and desire to enter into this
Agreement;
Now, therefore, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Stock Purchase Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
Article 1
Voting of Shares
1.1 Voting Agreement. Each Voting Stockholder hereby agrees to (a) appear,
in person or by proxy, or cause any other holder of record of any Shares owned
beneficially by such Voting Stockholder on any applicable record date (the
"Record Holder") to appear, in person or by proxy, so that all the Shares owned
of record and/or beneficially by such Voting Stockholder are counted for the
purpose of obtaining a quorum at any meeting of stockholders of the Company, and
at any adjournment or adjournments thereof, at which any proposal to adopt the
Restated Certificate or, subject to Section 1.3, any other proposal necessary or
advisable to carry into effect the purpose and intent of this Agreement is
presented for consideration and action by the stockholders of the Company (a
"Meeting") and (b) vote, or cause the Record Holder to vote, in person or by
proxy, or, to the extent written consents are solicited, to execute and deliver,
or cause the Record Holder to execute and deliver, written consents with respect
to, all Shares owned of record and/or beneficially by such Voting Stockholder as
of the record date for determining stockholders of the Company entitled to vote,
or execute and deliver written consents, in favor of (i) any proposal to adopt
the Restated Certificate, (ii) any proposal necessary to permit the Conversion
to be effected and the shares issued in the Conversion (and any shares of
capital stock issuable upon conversion of such shares) to be authorized for
quotation or listing on the NASDAQ Stock Market or any other national securities
exchange on which the common stock of the Company is then quoted or listed,
(iii) any proposal to amend the Current Certificate as will be amended by the
Certificate of Designations by adoption of an amendment thereto incorporating
the General Amendments if the Restated Certificate is not adopted at a Meeting
at which a proposal to do so is first proposed (the "First Meeting") and the
provisions of Section 3.5 are therefore applicable and (iv) subject to Section
1.3, any other proposal the approval of which is necessary or advisable to carry
into effect the purpose and intent of this Agreement. Each Voting Stockholder
shall also vote against, and cause the Record Holder to vote against, and
refrain, and cause the Record Holder to refrain, from executing and delivering
written consents in favor of, any proposal which is contrary to or inconsistent
with any proposal in favor of which the Voting Stockholders are required to vote
as provided hereinabove in this Section 1.1. Each Voting Stockholder shall also
vote, and cause the Record Holder to vote, in favor of the adjournment, to
another time, date and place, of any Meeting at which any proposal in favor of
which the Voting Stockholders are required to vote as provided hereinabove in
this Section 1.1 is presented for consideration and action by the stockholders
of the Company if a quorum for such Meeting is lacking or if the votes cast at
such Meeting in favor of any such proposal are insufficient to approve such
proposal.
1.2 Grant of Proxy. In furtherance of the foregoing, each Voting
Stockholder, by this Agreement, with respect to all Shares now or hereafter
owned of record and/or beneficially by such Voting Stockholder, does hereby
constitute and appoint Xxxxxx Xxxxx, Xx. and Xxxxxxxx Xxxxxxxx, and each of them
acting singly, with full power of substitution, from the date hereof to the time
of termination of this Agreement, as such Voting Stockholder's true and lawful
attorneys-in-fact and proxies (each of them, its "Proxy"), for and in such
Voting Stockholder's name, place and stead, to vote all such Shares at every
Meeting, including the right to sign such Voting Stockholder's name (as a
stockholder of the Company) to and deliver any consent, certificate or other
document relating to the Shares owned by such Voting Stockholder that the
Delaware General Corporation Law (the "DGCL") permits or requires, to effect the
agreement to vote, or execute and deliver written consents, under Section 1.1.
The foregoing appointment by each Voting Stockholder of Xxxxxx Xxxxx, Xx. and
Xxxxxxxx Xxxxxxxx as such Voting Stockholder's attorneys-in-fact and Proxies is
irrevocable to the fullest extent permitted by Delaware law and is coupled with
an interest. Each Voting Stockholder hereby revokes any other power-of-attorney,
proxy or appointment previously given, granted or made by such Voting
Stockholder with respect to Shares owned of record and/or beneficially by such
Voting Stockholder insofar as the exercise of any such other power-of-attorney,
proxy or appointment could be contrary to or inconsistent with the agreement to
vote, or execute and deliver written consents, under Section 1.1. By the
signature of its authorized signatory below, the Company hereby acknowledges
that the power-of-attorney given and the proxy granted hereby is in a form
acceptable to, and will be recognized by, the Company.
1.3 Matters Related to Adoption of the Restated Certificate; Special
Committee. Each Voting Stockholder, and Proxies acting for such Voting
Stockholder, shall be obligated under Section 1.1 to vote, or execute and
deliver written consents, in favor of any proposal (other than (i) a proposal to
adopt the Restated Certificate, (ii) any proposal necessary to permit the
Conversion to be effected and the shares issued in the Conversion (and any
shares of capital stock issuable upon conversion of such shares) to be
authorized for quotation or listing on the NASDAQ Stock Market or any other
national securities exchange on which the common stock of the Company is then
quoted or listed and (iii) any proposal to amend the Current Certificate as will
be amended by the Certificate of Designations by adoption of an amendment
thereto incorporating the General Amendments if the Restated Certificate is not
adopted at the First Meeting and the provisions of Section 3.5 are therefore
applicable) only if the Special Committee of the Board of Directors of the
Company (the "Special Committee") shall have determined that approval of such
other proposal is necessary or advisable to carry into effect the purpose and
intent of this Agreement. Further, each Voting Stockholder shall be obligated to
vote against, and refrain from executing and delivering written consents in
favor of, any proposal only if the Special Committee shall have determined that
approval of such proposal is contrary to or inconsistent with any proposal in
favor of which the Voting Stockholders are required to vote under Section 1.1.
Any such determination by the Special Committee shall be final and binding upon
the Company, the Voting Stockholders and their Proxies.
1.4 No Inconsistent Agreements. Each Voting Stockholder hereby covenants
and agrees that such Voting Stockholder will not, at any time while this
Agreement remains in effect, (a) enter into any voting agreement or voting trust
with respect to any of the Shares, or (b), grant a proxy or give a
power-of-attorney or make any other appointment with respect to any of the
Shares, except as is and will be consistent with the agreement to vote, or
execute and deliver written consents, under Section 1.1. Each Voting Stockholder
also covenants and agrees that such Voting Stockholder will not, prior to the
termination of this Agreement, take any action that could make any
representation or warranty of such Voting Stockholder contained herein untrue or
could constitute a breach of any covenant or agreement by such Voting
Stockholder hereunder or could have the effect of preventing, disabling,
hindering or delaying such Voting Stockholder, any other Voting Stockholder or
the Company from performing their respective obligations under this Agreement.
Article 2
Representations, Warranties, Covenants and Agreements of Voting Stockholders
Each Stockholder, severally and not jointly, hereby represents, warrants,
covenants and agrees as follows:
2.1 Authority Relative to Agreement. Such Voting Stockholder is duly
organized, formed or created under the laws of the jurisdiction of its
organization. Such Voting Stockholder has the power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. All necessary corporate or other entity
action on behalf of such Voting Stockholder has been taken to authorize this
Agreement to be entered into on behalf of and to be performed by such Voting
Stockholder. This Agreement has been duly and validly executed and delivered on
behalf of such Voting Stockholder and, assuming the power and authority of the
Company with respect to, and the due authorization, execution and delivery by
the Company of, this Agreement, constitutes a legal, valid and binding
obligation of such Voting Stockholder, enforceable against such Voting
Stockholder in accordance with its terms.
2.2 No Conflict. The execution and delivery of this Agreement or any
instrument required by this Agreement to be executed and delivered by such
Voting Stockholder do not, and the performance of this Agreement by such Voting
Stockholder will not, (a) result in any breach of or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of the Shares
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Voting Stockholder is a party or by which such Voting Stockholder is bound or to
which any of the Shares owned of record and/or beneficially by such Voting
Stockholder is or are subject or by which they are or any of them is affected,
or under the applicable organizational documents of such Voting Stockholder or
(b) conflict with or violate any law, regulation, rule, judgment, order, decree
or award, in each case applicable to such Voting Stockholder or any Shares owned
of record and/or beneficially by such Voting Stockholder.
2.3 No Consents. The execution and delivery by such Voting Stockholder of
this Agreement or any instrument required by this Agreement to be executed and
delivered by such Voting Stockholder does not, and the performance by such
Voting Stockholder of this Agreement or any instrument required by this
Agreement to be executed and delivered by such Voting Stockholder will not,
require such Voting Stockholder to obtain any consent or waiver of any Person or
the consent, approval, authorization or action by, license, waiver,
qualification, order or permit of any federal, state or local government or any
court, administrative or regulatory tribunal, agency, body, or commission or
other governmental authority, domestic or foreign (a "Governmental Authority")
required under any law, regulation, rule, judgment, order, decree or award, in
each case applicable to such Voting Stockholder or any Shares owned of record
and/or beneficially by such Voting Stockholder, observe any waiting period
imposed by, or make any filing with or notification to, any Governmental
Authority.
2.4 Title to the Shares. All Shares beneficially owned by such Voting
Stockholder as of the date hereof are set forth opposite such Voting
Stockholder's name under column I of Schedule A hereto and all Shares owned of
record by each Voting Stockholder are set forth opposite such Voting
Stockholder's name under column II of Schedule A hereto. All such Shares are
owned free and clear of all Liens, options, rights of first refusal or first
offer, and agreements other than this Agreement and as described in Section 3.02
of the Stock Purchase Agreement, including but not limited to any thereof
limiting such Voting Stockholder's voting rights, and such Voting Stockholder
has not granted any proxy or given any power-of-attorney or made any appointment
which remains effective with respect to any of the Shares, other than the
power-of-attorney given and the proxy granted under Section 1.2. Such Voting
Stockholder has the sole power to vote all Shares set forth opposite such Voting
Stockholder's name on Schedule A hereto, with no restrictions or limitations on
such power, except as noted on Schedule A hereto.
2.5 Transferees of Shares. In the event that any Voting Stockholder intends
to transfer ownership of any of the Shares owned of record and/or beneficially
by such Voting Stockholder to a Person that is not then a Voting Stockholder, as
a condition to the effectiveness of such transfer, such Voting Stockholder shall
cause the transferee to agree, by executing and delivering to the Company a
joinder agreement in form and substance satisfactory to the Special Committee,
to become a party to this Agreement from and after the time such transfer is
effected. The Company shall not be required to recognize the effectiveness of
any transfer of Shares by a Voting Stockholder or a purported successor in
interest to a Voting Stockholder which is not in compliance with the foregoing
requirement.
Article 3
Representations, Warranties, Covenants and Agreements of the Company
The Company represents, warrants, covenants and agrees as follows:
3.1 Authority Relative to Agreement. The Company is duly organized under
the laws of the State of Delaware. The Company has the power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. All necessary corporate action
on behalf of the Company has been taken to authorize this Agreement to be
entered into on behalf of and to be performed by the Company. This Agreement has
been duly and validly executed and delivered on behalf of the Company and,
assuming the power and authority of each Voting Stockholder with respect to, and
the due authorization, execution and delivery by such Voting Stockholder of this
Agreement, constitutes a legal, valid and binding obligation of the Company
vis-a-vis such Voting Stockholder, enforceable against the Company in accordance
with its terms.
3.2 No Conflict. The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement by the Company will not,
(i) result in any breach of or constitute a default (or an event that, with
notice or lapse of time or both, would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any of the assets of the Company pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company is a
party or by which the Company is bound or to which any of the assets of the
Company is or are subject or by which they are or any of them is affected, or
under the Current Certificate as will be amended by the Certificate of
Designations or the bylaws of the Company or (ii) conflict with or violate any
law, regulation, rule, judgment, order, decree or award, in each case applicable
to the Company or any of its assets.
3.3 No Consents. The execution and delivery by the Company of this
Agreement or any instrument required by this Agreement to be executed and
delivered by the Company does not, and the performance by the Company of its
obligations under this Agreement or any instrument required by this Agreement to
be executed and delivered by the Company will not, require the Company to obtain
any consent or waiver of any Person or the consent, approval, authorization or
action by, license, waiver, qualification, order or permit of any Governmental
Authority required under any law, regulation, rule, judgment, order, decree or
award, in each case applicable to the Company or any of its assets, observe any
waiting period imposed by, or make any filing with or notification to, any
Governmental Authority, except any of the foregoing required under the DGCL, the
Current Certificate as will be amended by the Certificate of Designations, the
Company's bylaws and Section 14 of the Exchange Act and the rules and
regulations of the SEC promulgated thereunder.
3.4 The Meeting. The Company shall take all steps necessary, in accordance
with the Current Certificate as will be amended by the Certificate of
Designations and the Company's bylaws, the DGCL and Section 14(a) of the
Exchange Act and the rules and regulations of the SEC promulgated thereunder, to
call, set a record date for, give notice of, convene, hold and conduct a
Meeting, to occur on or before July 31, 2001, at which (i) a proposal to adopt
the Restated Certificate will be considered and acted upon, (ii) any proposal
necessary to permit the Conversion to be effected and the shares issued in the
Conversion (and any shares of capital stock issuable upon conversion of such
shares) to be authorized for quotation or listing on the NASDAQ Stock Market or
any other national securities exchange on which the common stock of the Company
is then quoted or listed and, (iii) subject to Section 1.3, for such other
purposes as are necessary or advisable to carry into effect the purpose and
intent of this Agreement and any other proper purposes for which such Meeting
may be called. The Board and the Special Committee shall (a) take all steps
necessary to determine the advisability of adopting the Restated Certificate
and, if the provisions of Section 3.5 are applicable, the General Amendments,
and to present to the stockholders of the Company (i) the proposal to adopt the
Restated Certificate, (ii) any proposal necessary to permit the Conversion to be
effected and the shares issued in the Conversion (and any shares of capital
stock issuable upon conversion of such shares) to be authorized for quotation or
listing on the NASDAQ Stock Market or any other national securities exchange on
which the common stock of the Company is then quoted or listed, (iii) any
proposal to amend the Current Certificate as will be amended by the Certificate
of Designations by adoption of an amendment thereto incorporating the General
Amendments if the Restated Certificate is not adopted at the First Meeting and
the provisions of Section 3.5 are therefore applicable and, (iv) subject to
Section 1.3, any other proposal which is necessary or advisable to carry into
effect the purpose and intent of this Agreement to be submitted to the
stockholders of the Company at such Meeting for their consideration and action
and (b) use all reasonable efforts to obtain the approving vote of the
stockholders of the Company for (i) the adoption of the Restated Certificate,
(ii) any proposal necessary to permit the Conversion to be effected and the
shares issued in the Conversion (and any shares of capital stock issuable upon
conversion of such shares) to be authorized for quotation or listing on the
NASDAQ Stock Market or any other national securities exchange on which the
common stock of the Company is then quoted or listed, (iii) any proposal to
amend the Current Certificate as will be amended by the Certificate of
Designations by adoption of an amendment thereto incorporating the General
Amendments if the Restated Certificate is not adopted at the First Meeting and
the provisions of Section 3.5 are therefore applicable and, (iv) subject to
Section 1.3, any other proposal the approval of which is necessary or advisable
to carry into effect the purpose and intent of this Agreement. The Company
represents and warrants that the Board and the Special Committee have determined
that adoption of the Restated Certificate is advisable and in the best interest
of the Company, have directed that a proposal to adopt the Restated Certificate
be presented to the stockholders of the Company for their consideration and
approval, and have recommended that the stockholders of the Company approve such
a proposal.
3.5 Second Meeting; Adoption of General Amendments. In the event that at
the First Meeting (i) a proposal to adopt the Restated Certificate is not
approved, then after the Board shall have declared the General Amendments
advisable, the Voting Stockholders shall as soon thereafter as practicable
execute and deliver written consents to a proposal to adopt an amendment to the
Current Certificate as will be amended by the Certificate of Designations
incorporating the General Amendments. If the provisions of this Section 3.5 are
so rendered applicable, if requested in writing by a Voting Stockholder, the
Company shall within twelve months after the First Meeting take all of the
action provided for in Section 3.4 with respect to a second Meeting (the "Second
Meeting") and all of the other provisions of this Agreement, including but not
limited to the obligations of the Voting Stockholders provided for in Section
1.1, shall continue to be applicable and in full force and effect in connection
therewith and otherwise; provided that, in the event that at the Second Meeting
any or all of (i) a proposal to adopt the Restated Certificate, (ii) any
proposal necessary to permit the Conversion to be effected and the shares issued
in the Conversion (and any shares of capital stock issuable upon conversion of
such shares) to be authorized for quotation or listing on the NASDAQ Stock
Market or any other national securities exchange on which the common stock of
the Company is then quoted or listed which is presented at such Meeting and,
(iii) subject to Section 1.3, any other proposal necessary or advisable to carry
into effect the purpose and intent of this Agreement is not approved by the
stockholders of the Company, including by the Class A Vote, then this Agreement
shall thereupon terminate and be of no further force and effect; provided,
further, that in any event the General Amendments, after having been adopted,
shall remain in full force and effect.
Article 4
Miscellaneous
4.1 Reasonable Efforts. The Company and each Voting Stockholder shall use
all of its reasonable efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with one another in doing,
all things necessary, proper or advisable, in the most expeditious manner
practicable, to enable the full and timely performance of this Agreement,
including (a) seeking to obtain all necessary actions or non-actions, waivers,
consents and approvals from Governmental Authorities, making all necessary
registrations and filings and taking all reasonable steps as may be necessary to
obtain an approval or waiver from, or to avoid an action or proceeding by, any
Governmental Authority, (b) the obtaining of all necessary consents, approvals
or waivers from third parties, (c) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging the validity,
effectiveness or performance of this Agreement, including but not limited to the
adoption or effectiveness of the Restated Certificate, including but not limited
to seeking to have any stay, temporary restraining order or preliminary
injunction entered by any Governmental Authority vacated or reversed, but not
including the payment or reimbursement of any legal fees in connection with any
such lawsuits or other proceedings other than the payment by each party of its
own expenses, and (d) the execution and delivery of any additional instruments
necessary to consummate the transactions contemplated by, and to carry out the
purpose and intent of, this Agreement.
4.2 Obligations of Voting Stockholders with Respect to Record Holders of
Shares. Each Voting Stockholder hereby agrees that, with respect to any Shares
owned beneficially by such Voting Stockholder but held of record by another
Person, such Voting Stockholder shall, at the request of the Company or any
other Voting Stockholder, cause any holder of record of such Shares to take any
and all actions which the Company or such other Voting Stockholder deems
necessary, proper and advisable to enable the full and timely performance of
this Agreement, including but not limited to causing any record holder of such
Shares to execute and deliver a proxy or power-of-attorney to effect the
provisions of this Section 4.2.
4.3 Termination. This Agreement shall terminate upon the earliest to occur
of (a) the mutual written agreement of all Voting Stockholders and the Company,
(b) the termination of the Stock Purchase Agreement in accordance with its terms
prior to the issuance and sale of Shares pursuant thereto or (c) a termination
of this Agreement pursuant to the last sentence of Section 3.5 occurs.
4.4 Enforcement of Agreement. The parties hereto agree that immediate,
substantial and irreparable harm for which monetary damages will be inadequate
will occur in the event that any of the provisions of this Agreement are not
performed in accordance with its terms by another party hereto or this Agreement
is otherwise breached by another party hereto. Accordingly, it is agreed that
each of the parties hereto will be entitled, in addition to any other remedy to
which such party is entitled at law or in equity, to (a) an injunction or
injunctions to prevent breaches or continuing breaches of this Agreement by any
other party or parties hereto and (b) an order of specific performance of the
provisions hereof.
4.5 Successors and Affiliates. This Agreement shall inure to the benefit of
and shall be binding upon the parties hereto, their Affiliates and the legal
representatives, successors and permitted assigns of the parties hereto and
their Affiliates. If any Voting Stockholder shall at any time hereafter acquire
ownership of, or voting power with respect to, any additional Shares in any
manner, whether by the exercise of any options, warrants or other rights, by
operation of law or otherwise, such Shares shall be held subject to all of the
provisions of this Agreement. Without limiting the foregoing, each Voting
Stockholder specifically acknowledges and agrees that the obligations of such
Voting Stockholder hereunder shall not be terminated by operation of law.
4.6 Entire Agreement; Condition to Effectiveness. This Agreement, together
with the Stock Purchase Agreement and the Current Certificate as will be amended
by the Certificate of Designations, constitutes the entire agreement among the
Company and the Voting Stockholders with respect to the subject matter hereof
and supersedes all prior or contemporaneous agreements and understandings, both
written and oral, among the Company and the Voting Stockholders with respect to
the subject matter hereof, other than the Stock Purchase Agreement and the
Current Certificate as will be amended by the Certificate of Designations. This
Agreement shall not take effect unless and until the Stock Purchase Agreement
shall have been executed and delivered by the Company and by each of the Voting
Stockholders and shall have taken effect.
4.7 Captions and Counterparts. The captions in this Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument.
4.8 Amendment. This Agreement may not be amended except by an instrument in
writing signed by all of the parties hereto.
4.9 Waivers. Except as provided in this Agreement, no action taken pursuant
to this Agreement, including but not limited to any investigation by or on
behalf of any party, shall be deemed to constitute a waiver of compliance with
any representations, warranties, covenants or agreements contained in this
Agreement by the party taking such action. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a wavier
of any prior or subsequent breach of the same or any other provision hereunder.
4.10 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
purpose and intent of this Agreement will be carried into effect to the fullest
extent possible.
4.11 Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the Company at its address
below and any other receiving party's address as set forth on Schedule A hereto,
or to such other address as a party may designate by notice hereunder, and shall
be either (i) delivered by hand, (ii) made by telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid.
If to the Company:
America Online Latin America, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
America Online Latin America, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given (i) if by hand, at the time of the delivery thereof to
the receiving party at the address of such part set forth above, (ii) if made by
telecopy or facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next Business Day (or if sent overseas, on the second Business
Day) following the day such notice is delivered to the courier service, or (iv)
if sent by registered or certified mail, on the date delivery is made at the
address of such party set forth above.
4.12 Governing Law. This Agreement shall be governed by, and construed in
accordance with, Delaware law, regardless of any law that might otherwise govern
under applicable principles of conflicts of law. State courts within the State
of Delaware and, more particularly to the fullest extent such court shall have
subject matter jurisdiction over the matter, the Court of Chancery of the State
of Delaware shall have exclusive jurisdiction over any and all disputes between
the parties hereto, whether in law or equity, arising out of or relating to this
Agreement and the agreements, instruments and documents contemplated hereby. The
parties consent to and agree to submit to the jurisdiction of such courts. Each
of the parties hereby waives, and agrees not to assert in any such dispute, to
the fullest extent permitted by applicable Delaware law, or any other applicable
law, any claim that (a) such party is not personally subject to the jurisdiction
of such courts, (b) such party and such party's property is immune from any
legal process issued by such courts or (c) any litigation commenced in such
courts is brought in an improper or inconvenient forum. Each of the parties
hereto agrees that service of process may be made on such party in the manner
provided in Section 4.10 or in any other manner permitted by Delaware law, or
any other applicable law, anywhere in the world, and that such service shall
constitute valid and sufficient service of process on such party.
4.13 Several Obligations of Voting Stockholders. The obligations of the
Voting Stockholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances shall any Voting Stockholder have any liability or obligation with
respect to any misrepresentation or breach of covenant or agreement of any other
Voting Stockholder.
4.14 Officers and Directors. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not be deemed
to prevent any employee, officer, director or representative of any Voting
Stockholder or the Company from taking any action or refraining from taking any
action in the exercise of his or her fiduciary duty as an employee, officer or
director of the Company, provided that any action or failure to act by such
Person which, if taken by such Voting Stockholder or by the Company, as the case
may be, would constitute a breach of this Agreement if committed by such Voting
Stockholder or by the Company, as the case may be, shall be deemed a breach of
this Agreement by such Voting Stockholder or the Company, as the case may be,
whether or not such action or inaction is in accordance with such fiduciary
duty.
4.15 Interpretation. The parties have participated jointly in the
negotiation of this Agreement. In the event that an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of the provisions
of this Agreement.
4.16 Waiver of Jury Trial. Each party hereto hereby waives any right to
have a jury participate in resolving any dispute arising out of, or in
connection with, related to, or incidental to this Agreement, the calling or
holding of a Meeting to consider and act upon a proposal which is the subject of
the agreement to vote, or execute and deliver written consents, under Section
1.1 or the conduct of any such Meeting insofar as relates to the subject matter
of the agreement to vote, or execute and deliver written consents, under Section
1.1.
AMERICA ONLINE LATIN AMERICA, INC.
By:
Name:
Title:
AMERICA ONLINE, INC.
By:
Name:
Title:
RIVERVIEW MEDIA CORP.
By:
Name:
Title:
ASPEN INVESTMENTS LLC
By:
Name:
Title:
ATLANTIS INVESTMENTS LLC
By:
Name:
Title:
Schedule A
Voting Stockholders
I II
Name and Address (Beneficially Owned) (Owned of Record)
---------------- -------------------- -----------------
America Online, Inc. 101,858,334* 101,858,334*
00000 XXX Xxx Series B Stock Series B Xxxxx
Xxxxxx, XX 00000-0000, XXX
Attn: President, AOL International 14,152,123 14,152,123
Telecopier: (000) 000-0000 Series D Stock Series D Stock
With a copy (which shall not constitute notice) to: 4,000,000 4,000,000
Class A Stock Class A Stock
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000-XXX
Attn: General Counsel
Telecopier: (000) 000-0000
Riverview Media Corp. 97,298,406
c/o Finser Corporation Series C Stock
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000 4,000,000
Attn: General Counsel Class A Stock
Telecopier: (000) 000-0000
With a copy (which shall not constitute notice) to:
Milbank, Tweed, Xxxxxx and XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
Aspen Investments LLC 48,865,869 6,805,019
c/o Finser Corporation Series C Stock Series E Stock
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000 6,805,019
Attn: General Counsel Series E Stock
Telecopier: (000) 000-0000:
2,000,000
With a copy (which shall not constitute notice) to: Class A Stock
Milbank, Tweed, Xxxxxx and XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
Atlantis Investment LLC 48,938,091 6,805,018
c/o Finser Corporation Series C Stock Series E Stock
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000 6,805,018
Attn: General Counsel Series E Stock
Telecopier: (000) 000-0000
2,000,000
With a copy (which shall not constitute notice) to: Class A Stock
Milbank, Tweed, Xxxxxx and XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
* Does not include 16,541,250 shares of Class A Stock, Class B Common Stock,
$.01 par value per share, or Series B Stock purchasable upon the full exercise
of a warrant therefor.
