Exhibit 10.25
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AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
by and among
THE SHAREHOLDERS OF
EL SITIO, INC.
November 9, 1999
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AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT, dated as of
November 9, 1999, entered into by and among and El Sitio, Inc., an international
business company organized and existing under the laws of the British Virgin
Islands (the "Company"), IAMP (El Sitio) Investments Ltd., a British Virgin
Islands international business company ("IAMP"), Xxxxxxxx Enterprises Inc., a
British Virgin Islands corporation ("Xxxxxxxx"), Chestnut Hill (El Sitio), LLC,
a Delaware limited liability company ("Chestnut"), and the other shareholders
set forth on the signature page hereto (collectively with IAMP, Xxxxxxxx,
Chestnut and the Initial Shareholders, the "Shareholders").
W I T N E S S E T H:
WHEREAS, the holders of the Company's Class A Convertible
Preferred Shares (the "Class A Shareholders") entered into a Stockholders
Agreement dated July 2, 1999, as amended October 6, 1999 (as so amended, the
"Original Shareholders' Agreement"), and the Class A Shareholders desire to
include the holders of the Company's Class B Convertible Preferred Shares (the
"Class B Shareholders") as parties to such agreement;
WHEREAS, immediately prior to the Closing (as defined below),
the Shareholders owned, beneficially and of record, such number of shares of
each class of the capital stock of the Company as are set forth on Exhibit 1(a)
hereto;
WHEREAS, on the date hereof (the "Closing"), the Class B
Shareholders are purchasing certain of the Company's Class B Convertible
Preferred Shares, in the amounts set forth on Exhibit 1(b) hereto;
WHEREAS, immediately following the Closing, each Shareholder
will own, beneficially and of record, the number of shares of each class of the
Company's capital stock set forth on Exhibit 1(c) hereto; and
WHEREAS, the Shareholders wish to establish certain agreements
relating to voting, transfers and other matters as provided herein and to amend
and restate the Original Shareholders' Agreement as provided herein.
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, 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, 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 Shareholders'
Agreement, as from time to time assigned, supplemented, amended or modified in
accordance with the terms hereof.
"Amended and Restated Registration Rights Agreement" means the
Amended and Restated Registration Rights Agreement dated as of November 9, 1999,
among the Company, certain Class A Shareholders and the Class B Shareholders,
attached hereto as Exhibit 3A.
"Board" means the Board of Directors of the Company.
"Class A Preferred Shares" means the Class A Convertible
Preferred Shares of the Company.
"Class B Preferred Shares" means the Class B Convertible
Preferred Shares of the Company.
"Cause" means, with respect to any director, such individual's
(i) commission of an act involving the reckless disregard of his duties to the
Company or any of its subsidiaries, (ii) conviction in a criminal proceeding
(other than a misdemeanor), or (iii) suffering under a mental or physical
condition which has rendered such individual for a period of 180 consecutive
days during the term of this Agreement totally incapacitated and incompetent to
carry out the responsibilities of a director of the Company.
"El Sitio Shares" means, collectively, the common shares, par
value $0.01 per share, of the Company, the Class A Preferred Shares, the Class B
Preferred Shares, and any other class of capital stock of the Company issued at
any time hereafter which has the right to vote in all matters, each as described
in the Memorandum of the Company.
"Ibero Group" means Shareholders which are Affiliates of
Ibero-American Media Partners II Ltd.
"Initial Interest" means the Interest on the date hereof of
each Shareholder.
"Initial Shareholders" means, collectively, Xxxxxxxxx Limited,
Futurit S.A., Tower Plus International Corp., SLI. com Inc., Xxxxxxx
Xxxxxxx-Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxx
Said, Compania de Inversiones Montevideo BVI, Xxxxx X. Xxxxxx Trust, Vamagra
S.A., Julien Sevaux, Elinstar International Corp., Xxxxx Xxxxx Xxxxx Dard,
Summit Investment Management Ltd., Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Ami,
Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx, and the term "Initial Shareholder" means
one of them.
"Interest" of a Shareholder means the aggregate voting
interest represented by the El Sitio Shares directly or indirectly held, as of
the date of determination, by such Shareholder,
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expressed as a percentage of the total aggregate voting interest represented by
the El Sitio Shares directly or indirectly held by all of the Shareholders.
"Memorandum" means the Amended and Restated Memorandum of
Association and Amended and Restated Articles of Association of the Company in
the form attached hereto as Exhibit 2.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar U.S. federal law then in force.
"Shareholder" means any person who is a party to this
Agreement and any permitted transferee of such person who agrees to be bound by
the terms hereof in accordance with the terms of Section 5.11.
ARTICLE 2. CORPORATE GOVERNANCE
2.1. BOARD OF DIRECTORS. It is agreed that there shall nine
(9) members and nine (9) alternate members of the Board, all to be elected at
the same time and serving for a term of one fiscal year, and the Memorandum
shall so provide. Each director shall be entitled to vote on all matters
presented to the Board, except as expressly provided herein.
2.2 ELECTION AND REMOVAL OF DIRECTORS.
(a) The Initial Shareholders shall have the right in any
election of directors to the Board to select four (4) directors. Each
Shareholder agrees that the Class A Shareholders shall have the right to
nominate five (5) directors (each a "Class A Preferred Director") to the Board.
The Ibero Group shall have the right to nominate two (2) Class A Preferred
Directors for so long as the Ibero Group shall own ten percent (10%) or more of
its current holdings of El Sitio Shares on an as-converted basis or one (1)
Class A Preferred Director for so long as the Ibero Group shall own one percent
(1%) or more of El Sitio Shares on an as-converted basis. If the Ibero Group
owns less than one percent (1%) of El Sitio Shares on an as-converted basis, the
Ibero Group shall have the right to appoint an observer to the Board, who shall
be entitled to participate in the meetings of the Board, but shall not have any
vote. Chestnut shall have the right to nominate one (1) Class A Preferred
Director to the Board for so long as Chestnut shall own (i) two and one-half
percent (2.5%) or more of its current holdings of El Sitio Shares on an
as-converted basis or (ii) one percent (1%) or more of El Sitio Shares on an
as-converted basis. If Chestnut owns less than one percent (1%) of El Sitio
Shares on an as-converted basis, Chestnut shall have the right to appoint an
observer to the Board, who shall be entitled to participate in the meetings of
the Board, but shall not have any vote. IMPSAT shall have the right to nominate
one (1) Class A Preferred Director to the Board for so long as IMPSAT shall own
(i) two and one-half percent (2.5%) of its current holdings of El Sitio Shares
on an as-converted basis or (ii) one percent (1%) or more of El Sitio Shares on
an as-converted basis. If IMPSAT owns less than one percent (1%) of El Sitio
Shares on an as-converted basis, IMPSAT shall have the right to appoint an
observer to the Board who shall be entitled to participate in the meetings of
the Board, but shall not have any vote. One (1) Class A Preferred Director will
be nominated by the unanimous vote of all of the directors of El Sitio and shall
be independent to
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any other holder of common shares or Class A Preferred Shares. The Class B
Shareholders shall have the right to appoint one (1) observer to the Board, who
shall be entitled to participate in the meetings of the Board, but shall not
have any vote.
(b) If, prior to his election to the Board, any
director-nominee shall be unwilling or unable to serve as a director of the
Company, the Shareholder which nominated such director shall be entitled to
nominate a replacement who shall then be the director-nominee for such
Shareholder for purposes of this Article 2. Except as set forth in Section
2.2(c) and to the extent the Shareholders shall otherwise agree in writing, each
Shareholder agrees not to take any action or to cause the Company to take any
action to remove or replace any director (or any alternate therefor) nominated
by another Shareholder.
(c) Each Shareholder agrees to vote in favor of each other's
nominees upon initial election and upon replacement. In particular, upon the
written request of any other Shareholder, each Shareholder agrees to take all
actions available to it, including, without limitation, voting or acting by
written consent, with respect to all of the El Sitio Shares that it is entitled
to vote or so act, to (i) remove from the Board any member who had been
nominated by such other Shareholder and (ii) appoint any new member designated
by such other Shareholder to fill any vacancy on the Board caused by removal,
resignation or death of a member originally nominated by such other Shareholder.
A Shareholder shall have the right to cause the removal of any director
(including those nominated by another Shareholder) for Cause, and upon notice
from a Shareholder of its desire to remove a director for Cause, setting forth a
description of the facts and circumstances which constitute "Cause," each
Shareholder agrees to take any action necessary to remove such member of the
Board for Cause, if Cause exists.
(d) The Shareholders agree that the Memorandum shall provide
for certain notice, quorum and voting requirements for action of the Board and
agree not to take any action inconsistent with such provisions. The Memorandum
shall provide for quarterly meetings of the Board unless a majority in Interest
of the Shareholders otherwise agree. Special meetings of the Board may be held
by conference telephone or any other means consistent with British Virgin
Islands law.
2.3. BOARD ACTION.
(a) Except as provided in Section 2.3(b) below or in the
Memorandum or under applicable law, all actions of the Board shall require the
affirmative vote of five (5) directors. Unless prohibited by law, the directors
shall be permitted to vote on any matter brought before the Board. The
Shareholders and the Company agree to take any action necessary or desirable to
effect the foregoing
(b) The Shareholders agree that the matters set forth below
will require the affirmative vote of three of the five Class A Preferred
Directors:
(i) any guarantees, loans or contractual obligations
to make loans, in either case made by the Company or any Subsidiary to third
parties, in an amount which, jointly or severally, exceeds $50,000;
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(ii) execution by the Company or any Subsidiary of
contracts with suppliers or service companies in any amount which requires
annual or single payments which exceed $75,000 above and beyond any budgeted
item in the long term and annual business plans;
(iii) approval of the Company's long term business
plan and any material modifications thereto;
(iv) approval of the Company's Annual Budget (as
defined below) and any material modifications thereto;
(v) incurrence of debt by the Company or any
Subsidiary in amounts not contemplated by the Company's long term business plan
and annual business plan;
(vi) granting of Liens (other than purchase money
security interests) on assets (including shares of any Subsidiary) of the
Company or any Subsidiary not contemplated by the Company's long term business
plan and annual business plan;
(vii) any disposition outside the ordinary course of
business of assets (including shares of any Subsidiary) of the Company or any
Subsidiary having a value of more than $100,000 which constitute less than all
or substantially all of the assets of the Company;
(viii) any transactions between the Company or any of
its Subsidiaries, on the one hand, and any Shareholder or any of its Affiliates,
on the other hand;
(ix) reductions in capital for any reason;
(x) public listing of securities of the Company on a
securities exchange (except in connection with the exercise of demand
registration rights pursuant to the Registration Rights Agreement), other than
in connection with a public offering which raises at least $35.0 million net
proceeds for the Company;
(xi) issuance of equity securities or securities
convertible into or exchangeable for equity securities of the Company; and
(xii) distribution of dividends by the Company.
(c) If in any year the Board shall fail to approve a
business plan for the next fiscal year, the Company's existing long term
business plan in effect for the immediately preceding Fiscal Year (adjusted for
the growth rate and inflation adjustments set forth therein) shall continue in
effect.
2.4. SPECIAL SHAREHOLDER VOTING REQUIREMENTS.
(a) Each Shareholder agrees not to vote in favor of any of
the matters described in this Section 2.4(a) unless Shareholders holding more
than fifty percent (50%) of the Class A Preferred Shares voting as a class and
fifty percent (50%) of the Class B Preferred Shares voting as a class have
approved such matters (except with respect to subsection (ii) below,
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as to which each Shareholder agrees not to vote in favor of unless Shareholders
holding more than fifty percent (50%) of the Class A Preferred Shares have voted
in favor thereof). These matters are as follows:
(i) changes in legal structure of the Company such
as the conversion to a partnership (other than the creation of a subsidiary);
(ii) merger, consolidation or spin-off involving the
Company or sales of all or substantially all of the assets of the Company;
(iii) redemption of capital stock of the Company and
any other share repurchases, as well as a subsequent resale of such repurchased
shares, in excess of $50,000, except that, with respect to employment related
buy-backs, the Company may redeem or repurchase such capital stock without
approval of the Class A Preferred Shares; provided, however, that any such
employment related buy-back is carried out in accordance with a severance
arrangement;
(iv) insolvency, protection measures against
creditors, bankruptcies or any other voluntary or judicial financial
restructuring procedures;
(v) entry by the Company into any business other
than the Internet business or any other service;
(vi) dissolution, winding up or voluntary liquidation
of the Company;
(vii) modification of the benefits, advantages and
conditions of redemption or amortization of one or more classes of preferred
shares, or the creation of a new class of Shares which has rights which are
senior to the Class A Preferred Shares or Class B Preferred Shares;
(viii) creation by the Company of beneficial interests
in the capital stock of the Company; and
(ix) any amendments to the Memorandum relating to the
foregoing items.
(b) Each of the Shareholders will receive at least ten (10)
calendar days prior written notice of any meeting of Shareholders. In case a
quorum is not present at a meeting, the Shareholders attending such meeting
shall take any measures necessary to make such meeting ineffective, and hereby
agree that any action taken at such meeting (other than such measure) shall be
void ab initio. Except as provided in Section 2.4(a) above, actions requiring
approval of the Shareholders will be approved by a vote of a majority of the
Shareholders entitled to vote thereon and present in person or represented by
proxy (or any greater percentage which may be required under applicable law), at
any duly convened meeting of Shareholders at which a quorum is present.
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2.5. RIGHT TO INSPECT RECORDS. Each Shareholder shall have
the right to inspect and examine the books, records, files, long term business
plans and other business plans, and other documents of the Company upon
reasonable notice to the Company and at reasonable times and in a manner so as
not to disrupt business operations. In addition, the Shareholders agree to cause
the Company to provide any and all information reasonably required by any
Shareholder in order to comply with any legal, tax or regulatory requirements
applicable to such Shareholder.
2.6. FINANCIAL REPORTING. The Company shall furnish to the
Shareholders (or, in the case of clause (d) hereof, the Class A Shareholders):
(a) as soon as available, and within ninety (90) days after
the end of each fiscal year thereafter, (i) an audited consolidated balance
sheet of the Company and its Subsidiaries as of the end of such fiscal year,
together with the related consolidated statements of income, shareholders'
equity and cash flows for the fiscal year then ended, prepared in accordance
with United States GAAP, and certified by a "Big 5" firm of independent public
accountants selected by the Board and approved by the Shareholders, such
approval not to be unreasonably withheld (the "ANNUAL FINANCIAL STATEMENT"); and
(ii) any related management letters from such accounting firm. The Annual
Financial Statement shall also include comparative statements from the prior
fiscal year and the most recent Annual Budget (as defined below) delivered by
the Company pursuant to Section 2.6(d) hereof;
(b) as soon as available, and in any event within thirty
(30) days after the end of each quarter in each fiscal year (other than the last
quarter in each fiscal year) a consolidated balance sheet of the Company and its
Subsidiaries and the related statements of income, shareholders' equity and cash
flows, unaudited but prepared in accordance with United States GAAP (except that
such unaudited financial statement need not contain all of the required
footnotes and is subject to normal, recurring non-material year end
adjustments), and certified by the chief financial officer of the Company (the
"QUARTERLY BALANCE SHEET"). The Quarterly Balance Sheet shall be accompanied by
a quarterly management report describing the current status of the Company and
its Subsidiaries and their operations and prospects. The Quarterly Balance Sheet
should be prepared as of the end of such quarter with statements of income,
shareholders' equity and cash flows for such quarter and for the period from the
beginning of the fiscal year to the end of such quarter, in each case with
comparative statements for the prior fiscal year and the most recent Annual
Budget delivered by the Company pursuant to 2.6(d) hereof, and which shall
specifically note and describe all expenditures (in any single transaction or
series of related transactions) in excess of $50,000 not included in the most
recent Annual Budget delivered by the Company pursuant to Section 2.6(d) hereof;
(c) as soon as available, and in any event no later than
twenty (20) days after the end of each month, statements of income and cash
flow, unaudited but prepared in accordance with United States GAAP (except that
such unaudited financial statement need not contain all of the required
footnotes and is subject to normal, recurring non-material year-end adjustments)
and certified by the chief financial officer of the Company, and any other
reports that are prepared by the management of the Company for the Board.
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(d) as soon as available, and in any event no later than
sixty (60) days prior to the start of each fiscal year, capital and operating
expense budget, cash flow projections and income and loss projections for the
Company and its Subsidiaries in respect of such fiscal year and an annual
business plan (the "ANNUAL BUDGET"), all itemized in reasonable detail and
prepared on a monthly basis, and, promptly after preparation, any revisions to
any of the foregoing;
(e) promptly, any document relating to the affairs of the
Company and its Subsidiaries delivered to all of the Shareholders and such other
information as the Shareholders shall reasonably request from time to time; and
(f) promptly, notice, and in any event within ten (10) days
after notice has been received by the Company or its Subsidiaries, of any
material litigation or an adverse event, claim, dispute or any other development
which may be deemed material to the operations, assets or properties of the
Company or its Subsidiaries.
2.7. ETHICAL BUSINESS PRACTICES. Each Shareholder agrees,
severally and not jointly, not to offer or give on behalf of the Company or any
of its Subsidiaries, and the Company agrees not to offer or give, either
directly or through a Third Party (as defined below), anything of value to: (a)
any government official, any political party or official thereof, or any
candidate for political office; (b) any customer or member of the government; or
(c) any other Person, in any such case while knowing or having reason to know
that all or a portion of such money or thing of value may be offered, given or
promised, directly or indirectly, to any customer or member of the government or
candidate for political office for the purpose of the following: (i) influencing
any action or decision of such Person, in his or its official capacity,
including a decision to fail to perform his or its official function; (ii)
inducing such Person to use his or its influence with any government or
instrumentality thereof to effect or influence any act or decision of such
government or instrumentality in order to assist the Company in obtaining or
retaining business for, or with, or directing business to, any Person; or (iii)
where such payment would constitute a bribe, kickback or illegal or improper
payment.
2.8. LIABILITY INSURANCE. The Company will maintain in full
force and effect directors' and officers' liability insurance with a reputable,
financially stable insurance company in such amounts and on such usual and
customary terms (including, without limitation, as to coverage for claims
against directors following the termination of their Board service) as the Board
shall authorize from time to time.
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2.9. COMPENSATION COMMITTEE AND AUDIT COMMITTEE. The Board of
the Company shall have two permanently sitting committees, the Compensation
Committee and the Audit Committee, which committees shall be comprised of three
members each. The Shareholders agree that two (2) representatives shall be
appointed to each committee by the Class A Shareholders, of which one (1)
representative shall be appointed by Ibero Group to each of the committees as
long as the Ibero Group retains its Board seat, and one (1) representative shall
be appointed by Chestnut to each of the committees as long as Chestnut retains
its Board seat. One (1) representative shall be appointed by the Initial
Shareholders to each of the committees.
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ARTICLE 3. TRANSFERS OF SHARES; PREEMPTIVE RIGHTS
3.1. RESTRICTION ON TRANSFER. The El Sitio Shares held by any
Shareholder and comprising its Interest ("Covered Shares") shall not be
transferable, directly or indirectly, except upon the conditions specified in
this Article 3, which conditions are intended, in part, to ensure compliance
with the provisions of the Securities Act in respect of any disposition of any
Covered Shares or any interest therein which would constitute a sale thereof
within the meaning of the Securities Act (a "Transfer"). As used in this Article
3, the term "Transferor" refers to the transferor (whether by voluntary or
involuntary means) of any Covered Shares, the term "Other Shareholder" means the
Shareholder which is not the Transferor, and the term "Subject Shares" means the
shares of Covered Shares that have been or are to be Transferred.
3.2. INVOLUNTARY TRANSFERS. In the event that an Involuntary
Transfer (as hereinafter defined) by any Shareholder of any Covered Shares may
occur, the following procedures shall apply:
(a) The Shareholder to be deprived or divested of Covered
Shares by the Involuntary Transfer shall promptly give written notice of such
Involuntary Transfer in reasonable detail to the Company and to the Other
Shareholders, and the person or persons who take or propose to take any interest
in the Subject Shares as a result of such Involuntary Transfer (the
"Transferee") shall hold such interest subject to the rights of the Other
Shareholder as set forth below.
(b) Upon receipt of the notice referred to in Section 3.2(a)
above or upon discovery of such Involuntary Transfer, the Company shall cause
the appraisal referred to in Section 3.2(c) to be made and each of the Other
Shareholders shall have the irrevocable option, but not the obligation, for a
period of sixty (60) days following receipt by all Other Shareholders of the
results of such appraisal, to purchase the Subject Shares, subject to the terms
set forth herein. Each Other Shareholder may exercise the option for the number
of Subject Shares which bears the same relation to the total number of Subject
Shares as (x) such Other Shareholder's Interest bears to (y) the aggregate
Interest then held by all of the Other Shareholders exercising such option (and
purchasing Subject Shares under Section 3.2(c) below), or for such other number
of Subject Shares as all of the Other Shareholders exercising such option may
agree in writing. In the event that the Other Shareholders elect to purchase, in
the aggregate, less than all of the Subject Shares, then the Other Shareholders
shall have no right to purchase any of the Subject Shares.
(c) The closing for any such sale of Subject Shares to one
or more Other Shareholders shall be at the offices of the Company on a mutually
satisfactory business day within fifteen (15) days after the expiration of such
sixty (60) day period. The purchase price per share of any Subject Shares
purchased pursuant to this Section 3.2 shall be the amount which is equal to the
fair value, as of the Valuation Date (as hereinafter defined), of a Subject
Share, as such fair value is determined by an independent appraiser selected by
the Company and reasonably acceptable to the Shareholders holding, in the
aggregate, the majority of the aggregate Interests, and all costs of any such
appraisal shall be paid by the Company. The "Valuation
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Date" shall be the last day of the calendar quarter immediately preceding the
Involuntary Transfer.
(d) For purposes of this Agreement, the term "Involuntary
Transfer" shall mean any involuntary sale, transfer, encumbrance or other
disposition by or in which any Shareholder shall be deprived or divested of any
right, title or interest in or to any Covered Shares, including, without
limitation, any levy of execution, transfer in connection with bankruptcy,
judicial reorganization, insolvency or similar proceedings or any transfer to a
public officer or agency pursuant to any abandoned property or escheat law;
provided that any Transfer complying with Section 3.3, Section 3.4, Section 3.5
or Section 3.6 hereof shall not be deemed to be an "Involuntary Transfer."
3.3. RIGHTS OF FIRST OFFER. Except as otherwise expressly
provided in Sections 3.4 and 3.5 hereof, each Shareholder (other than any Class
B Shareholder) hereby agrees that it shall not effect a Transfer of any Covered
Shares and to the extent that any offers made pursuant to this Section 3.3(a)
will not violate the Securities Act, except in accordance with the following
procedures:
(a) In the event that a Shareholder (other than a Class B
Shareholder) wishes to make a Transfer of any Covered Shares, the Transferor
shall first deliver to the Other Shareholders a written notice (the "Offer
Notice"), which Offer Notice shall (i) specify the terms, including the number
of shares of Covered Shares to be sold, and the price per share at which the
Transferor proposes to Transfer such Covered Shares, and (ii) be irrevocable for
a period of fifteen (15) days after delivery thereof, offering (the "Offer") to
the Other Shareholders all of the Subject Shares proposed to be sold by the
Transferor at the purchase price and on the terms specified therein. Each of the
Other Shareholders shall have the right and option, at its sole discretion, for
a period of fifteen (15) days after delivery of the Offer Notice (the
"Acceptance Period"), to accept all, but not less than all, of the Subject
Shares (pro rata among such Other Shareholders so electing on the basis of the
number of El Sitio Shares owned by such Other Shareholders) offered at a price
equal to the purchase price and upon the other terms stated in the Offer Notice.
Such acceptance may be made by delivery of a written notice to the Transferor
within said fifteen (15) day period, which notice shall specify whether such
Shareholder wishes to purchase more than its pro rata share, if Other
Shareholders decline to purchase, and if so, the maximum purchase such
Shareholder elects to make. In the event that any Shareholder elects not to
exercise its pro rata right to purchase, the Other Shareholder(s) shall have the
right to purchase the Subject Shares otherwise allocable to the
non-participating Shareholder pro rata to their participation in the Offer,
subject to the limits set forth in the applicable Offer Notice. In the event
that the Other Shareholders elect not to purchase all of the Subject Shares,
then the Other Shareholders shall have no right to purchase all or any portion
of such Subject Shares and the Transferor shall be free to Transfer the Subject
Shares in accordance with Section 3.3(c). A Shareholder electing to purchase
Subject Shares pursuant to this Section 3.3 is referred to herein as a
"Purchasing Shareholder"). For purposes of this Section 3.3, if the Transferor
is transferring the Company's common shares, then the Class B Shareholders shall
be included as Other Shareholders; in all other cases, the Class B Shareholders
shall not be included as Other Shareholders
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(b) Notwithstanding anything to the contrary contained in
Section 3.3 hereof, in the event the Transferor is one of the (i) Initial
Shareholders, the other Initial Shareholders will have a priority right of first
offer with respect to any Subject Shares offered by an Initial Shareholder, in
accordance with the terms and conditions of the Syndication Agreement among the
Initial Shareholders and dated as of June 10, 1999, before any such right may be
exercised by the Shareholders of any other class or (ii) Class A Shareholders,
the other Class A Shareholders will have a priority right of first offer with
respect to any Class A Preferred Shares offered by a Class A Shareholder, before
any such right may be exercised by the Other Shareholders.
(c) Transfers, if any, of Subject Shares to the Purchasing
Shareholder under the terms of this Section 3.3 shall be made at the offices of
the Company or any other address acceptable to the Company on a mutually
satisfactory business day within fifteen (15) days after the expiration of the
Acceptance Period. The Transferor shall deliver the Subject Shares by delivering
share certificates representing such Subject Shares, duly endorsed for transfer,
against payment of the purchase price thereof, in accordance with the terms of
the Offer.
(d) If effective acceptance shall not be received pursuant
to Section 3.3(a) above, with respect to all Covered Shares offered for sale
pursuant to the Offer Notice, then the Transferor may Transfer all or any part
of the El Sitio Shares so offered for sale at a price not less than the price,
and on terms not more advantageous to the purchaser than the terms stated in the
Offer Notice at any time within one hundred eighty (180) days after the
expiration of the Acceptance Period.
(e) In the event that any Shareholder exercises a purchase
right under Section 3.3(a) and then fails to consummate such purchase in
accordance with the terms of the Offer Notice (each such Shareholder, a
"Defaulting Shareholder"), then, in addition to any remedies at law or in equity
that the Transferor may have in respect of such failure, the Defaulting
Shareholder shall thereafter cease to have any right to receive offers or
purchase shares pursuant to Section 3.3(a).
3.4. EXEMPT TRANSFERS. Anything contained herein to the
contrary notwithstanding, the provisions of Sections 3.3, 3.5 and 3.6 shall not
be applicable to a Transfer (i) to an Affiliate of a Shareholder or for the
benefit of an Affiliate or family member of a Shareholder, if made solely for
personal tax or estate planning purposes of the Transferor, or (ii) in an
offering pursuant to the exercise of registration rights under the Registration
Rights Agreement, provided such Affiliate executes all documents (including the
representation that such Transfer may be effected without registration under the
applicable provisions of the Securities Act and state securities or blue sky
laws) deemed reasonably necessary by the Other Shareholder to cause the
Affiliate to become a party to, and be bound by, the terms of this Agreement.
3.5. TAG-ALONG RIGHTS.
(a) RIGHT TO PARTICIPATE IN SALE. Notwithstanding any other
provision hereof, if any Shareholder party hereto, other than any Class B
Shareholder (such Shareholders, together with their Affiliates, the "Selling
Shareholder(s)") proposes to enter into an agreement with a
12
third party to sell or otherwise dispose of for value (such sale or other
disposition for value being referred to as a "Tag-Along Sale") El Sitio Shares
held by it to a third party who is not an Affiliate (any such party, a "Third
Party") pursuant to a bona fide transaction (or series of related transactions)
in which securities representing an aggregate Interest of fifty percent (50%) or
more will be sold to a Third Party, then the Selling Shareholder(s) shall afford
the Other Shareholder(s), (the "Tag-Along Shareholders") the opportunity to
require that the sale by the Selling Shareholder(s) be conditioned upon such
Third Party purchasing that number of El Sitio Shares owned by such Tag-Along
Shareholder which delivers a Tag-Along Notice in accordance with Section 3.5(c)
equal to the product (rounded up to the nearest whole number) of (i) the
quotient determined by dividing (A) the number of El Sitio Shares owned by such
Tag-Along Shareholder, by (B) the number of El Sitio Shares owned by the Selling
Shareholders and all Tag-Along Shareholders which are selling El Sitio Shares in
the contemplated Tag-Along Sale, and (ii) the number of El Sitio Shares proposed
to be sold by all Shareholders in the contemplated Tag-Along Sale. In
negotiating a Tag-Along Sale, the Selling Shareholder(s) shall provide (i) that
the only representations, warranties or covenants which any Tag-Along
Shareholder shall be required to make in connection with any Transfer are
representations and warranties with respect to its own ownership of the shares
to be sold by it and its ability to convey title thereto free and clear of
liens, encumbrances or adverse claims, its due organization, its due
authorization, execution and delivery of the definitive purchase agreement (if
applicable), enforceability of such purchase agreement against it and no
conflict of it with such purchase agreement, and (ii) that the liability of the
Tag-Along Shareholder with respect to any representation and warranty made in
connection with any Transfer is the several liability of such Tag-Along
Shareholder (and not joint with any other person) and that such liability is
limited to the amount of proceeds actually received by such Tag-Along
Shareholder; provided, however, that the foregoing shall not limit the
obligations of such Tag-Along Shareholder, and such Tag-Along Shareholder hereby
expressly agrees to be bound by and be subject to, any escrow or other holdback
arrangement (on a pro rata basis based on the number of shares sold by such
Tag-Along Shareholder in proportion to all shares of the Company sold in such
Tag-Along Sale) provided for in the agreement relating to the Tag-Along Sale.
For purposes of this Section 3.5, if the Selling Shareholder is transferring the
Company's common shares, then the Class B Shareholders shall be included as
Tag-Along Shareholders; in all other cases, the Class B Shareholders shall not
be included as Other Shareholders.
(b) SALE NOTICE. The Selling Shareholder(s) shall provide
each Tag-Along Shareholder and the Company with written notice (the "Tag-Along
Sale Notice") not less than thirty (30) days prior to the proposed date of the
Tag-Along Sale (the "Tag-Along Sale Date"). Each Tag-Along Sale Notice shall be
accompanied by a copy of any agreement relating to the Tag-Along Sale (if
available) and shall set forth: (i) the name and address of the Third Party in
the Tag-Along Sale; (ii) the number of shares proposed to be Transferred by the
Selling Shareholder(s); (iii) the proposed amount and form of consideration to
be paid for such shares expressed on a per share basis and the terms and
conditions of payment offered by the Third Party; (iv) the aggregate number of
shares of the Company held of record by the Selling Shareholder(s) as of the
close of business on the day immediately preceding the date of the Tag-Along
Notice (the "Tag-Along Notice Date"); (v) confirmation that the Third Party has
been informed of the "Tag-Along Rights" provided for herein and has agreed to
purchase shares from
13
any Tag-Along Shareholder in accordance with the terms hereof; and (vi) the
Tag-Along Sale Date.
(c) TAG-ALONG NOTICE. Any Tag-Along Shareholder wishing to
participate in the Tag-Along Sale shall provide written notice (the "Tag-Along
Notice") to the Selling Shareholder(s) no less than fifteen (15) days prior to
the Tag-Along Sale Date. The Tag-Along Notice shall set forth the number of El
Sitio Shares that such Tag-Along Shareholder elects to include in the Tag-Along
Sale. The Tag-Along Notice given by any Tag-Along Shareholder shall constitute
such Tag-Along Shareholder's binding agreement to sell the shares specified in
the Tag-Along Notice on the terms and conditions applicable to the Tag-Along
Sale; provided, however, that in the event that there is any material change in
the material terms and conditions of such Tag-Along Sale applicable to the
Tag-Along Shareholder (including, but not limited to, any decrease in the
purchase price that occurs other than pursuant to an adjustment mechanism set
forth in the agreement relating to the Tag-Along Sale) after such Tag-Along
Shareholder gives its Tag-Along Notice, then, notwithstanding anything herein to
the contrary, the Tag-Along Shareholder shall have the right to withdraw from
participation in the Tag-Along Sale with respect to all of its El Sitio Shares
affected thereby. If the Third Party does not consummate the purchase of all the
El Sitio Shares requested to be included in the Tag-Along Sale by any Tag-Along
Shareholder on terms and conditions which are no more favorable in any material
respect to the Selling Shareholder (except as otherwise provided herein), then
the Selling Shareholder(s) shall not consummate the Tag-Along Sale of any of its
shares to the Third Party. If a Tag-Along Notice from any Tag-Along Shareholder
is not received by the Selling Shareholder(s) prior to the fifteen (15) day
period specified above, the Selling Shareholder(s) shall have the right to
consummate the Tag-Along Sale without the participation of such Tag-Along
Shareholder, but only on terms and conditions which are no more favorable in any
material respect to the Selling Shareholder (and in any event, at no greater a
purchase price, except as the purchase price may be adjusted pursuant to the
agreement regarding the relevant sale or other disposition) than as stated in
the Tag-Along Sale Notice and only if such Tag-Along Sale occurs on a date
within one hundred eighty (180) days of the Tag-Along Sale Date. If such
Tag-Along Sale does not occur within such one hundred eighty (180) day period,
the El Sitio Shares that were to be subject to such Tag-Along Sale thereafter
shall continue to be subject to all of the restrictions contained in this
Agreement.
(d) DELIVERY OF SHARES. On the Tag-Along Sale Date, each
Tag-Along Shareholder shall deliver the shares to be sold in connection with the
Tag-Along Sale to the Third Party by delivering share certificates representing
such shares, duly endorsed for transfer, against delivery of immediately
available funds in the amount of the purchase price for such shares.
(e) NO WAIVER. Any election in any instance by a Shareholder
not to exercise its rights to participate in a Tag-Along Sale under this Section
3.5 shall not constitute a waiver of such rights with respect to any other
proposed Transfer of shares of the Company which would trigger such rights.
14
3.6. DRAG-ALONG RIGHTS.
(a) GRANT OF DRAG-ALONG RIGHTS. If any Shareholder(s) party
hereto, other than any Class B Shareholder (such Shareholders, together with
their Affiliates, the "Selling Shareholder(s)") proposes to enter into an
agreement with a Third Party to sell or otherwise dispose of for value (such
sale or other disposition for value being referred to as a "Drag-Along Sale") El
Sitio Shares held by it to a Third Party pursuant to a bona fide transaction (or
series of related transactions) in which securities representing an aggregate
Interest of fifty percent (50%) or more will be sold to a Third Party, then the
remaining Shareholder(s), other than the Class B Shareholders (the "Drag-Along
Shareholder") shall, upon the written request of the Selling Shareholder(s),
sell to such Third Party (i) El Sitio Shares owned by such Drag-Along
Shareholder equal to (A) the number of El Sitio Shares owned by such Drag-Along
Shareholder multiplied by (B) a fraction ("Drag-Along Fraction"), the numerator
of which is the number of El Sitio Shares the Selling Shareholder(s) intend to
sell pursuant to this Section 3.6 and the denominator of which is the aggregate
number of El Sitio Shares owned by the Selling Shareholder(s), and (ii) warrants
owned by such Drag-Along Shareholder representing the right to acquire a number
of shares equal to (A) the number of shares underlying such Drag-Along
Shareholders warrants multiplied by (B) the Drag-Along Fraction,
contemporaneously with the sale of such El Sitio Shares by the Selling
Shareholder(s), for, with respect to the El Sitio Shares, the same consideration
and on the same terms as those provided by such Third Party to the Selling
Shareholder(s) and, with respect to the warrants, for the same consideration and
on the same terms as those provided by such Third Party to the Selling
Shareholder(s) less the aggregate exercise price for the warrants so
transferred.
(b) EXERCISE OF DRAG-ALONG RIGHT. The Drag-Along Right shall
be exercisable by written notice given by the Selling Shareholder(s) to each
Drag-Along Shareholder containing the price and other material terms of the
proposed sale and the date of the closing of the proposed sale (the "Drag-Along
Sale Date"), which date shall not be less than twenty (20) nor more than sixty
(60) calendar days after the date of such notice.
(c) DELIVERY OF SHARES. On the Drag-Along Sale Date, each
Drag-Along Shareholder shall deliver the shares to be sold in connection with
the Drag-Along Sale to the Third Party by delivering share certificates
representing such shares, duly endorsed for transfer, against delivery of
immediately available funds in the amount of the purchase price for such shares.
3.7. TRANSFERS IN VIOLATION OF AGREEMENT. If any voluntary
Transfer of El Sitio Shares is made or attempted contrary to the provisions of
this Agreement (such Transfer, an "Unauthorized Transfer"), the Other
Shareholders shall have the right to purchase all or part of such El Sitio
Shares from the owner thereof or the owner's transferee at any time before or
after the Transfer at a purchase price per share equal to (i) if any El Sitio
Shares are listed for trading on NASDAQ or the Bolsa de Comercios de Buenos
Aires, the lesser of (x) eighty percent (80%) of the thirty (30) day average
closing price over the thirty-day period immediately preceding the date of the
initial Transfer contrary to this Agreement, or (y) eighty percent (80%) of the
thirty (30) day average closing price for the thirty days immediately preceding
the date of exercise of
15
the right granted to the Other Shareholders herein, or (ii) if no El Sitio
Shares are listed for trading on NASDAQ or the Bolsa de Comercios de Buenos
Aires, the lesser of (x) eighty percent (80%) of the Fair Value at the time of
the initial transfer that was contrary to this Agreement, or (y) eighty percent
(80%) of the Fair Value at the time of the Other Shareholders' purchase of such
El Sitio Shares. The term "Fair Value" shall mean the amount at which the El
Sitio Shares would change hands between an independent, willing buyer and an
independent, willing seller, each having reasonable knowledge of all relevant
facts and neither being under any compulsion to act (considering, where
applicable, the relative rights of all outstanding classes or series of capital
stock but not discounting the value of such securities for illiquidity or
because they represent a minority ownership position in the Company), which
amount shall be determined by the Board in its reasonable discretion and in good
faith.
3.8. PREEMPTIVE RIGHTS.
(a) Except for the issuance of the Company's capital stock
or other securities (i) pursuant to a Qualifying IPO (as defined in the
Memorandum), (ii) comprising additional shares or option issuances to Employees
of the Company pursuant to share option plans existing on the date hereof
including the number of shares issuable thereunder as of the date hereof (or
amendments to such plans or new plans if agreed to by the Shareholders), (iii)
comprising Class B Preferred Shares, up to an aggregate of 1,888,889 Class B
Preferred Shares, or (iv) in connection with acquisitions of businesses by the
Company approved by the Shareholders, if the Company at any time after the date
hereof authorizes the issuance or sale of any capital stock of the Company or
any securities of the Company containing options or rights to acquire any shares
of capital stock (other than as a dividend on the outstanding capital stock),
the Company shall first offer to sell to the Shareholders on a pro rata basis,
all of such capital stock or other securities (the "Offered Shares").
(b) In order to exercise its purchase rights under this
Section 3.8, each Shareholder must within twenty (20) business days after
receipt of written notice from the Company describing in reasonable detail the
capital stock or securities being offered, the purchase price thereof and the
payment terms, deliver a written notice to the Company describing its election
hereunder. Such election shall indicate the number of Offered Shares that the
Shareholder in its sole discretion elects to purchase, which may be all or any
portion of the Offered Shares. The Company shall give the Shareholders no less
than fifteen (15) business days notice of the closing of the sale and purchase
of such shares.
(c) Upon the expiration of the 20-day period described
above, the Company shall be entitled to sell such capital stock or securities
which the Shareholder has not elected to purchase during the ninety (90) days
following such expiration on terms and conditions, including price, no more
favorable to the purchasers thereof than those offered to the Shareholders. Any
capital stock or securities offered or sold by the Company to any person after
such 90-day period must be re-offered to the Shareholders pursuant to the terms
of this Section 3.8.
16
ARTICLE 4. OTHER AGREEMENTS
Ibero-American Media Partners II Ltd., Xxxxxxxx and the
Company agree to use reasonable efforts to exploit jointly strategic business
opportunities in the future, including, but not limited to: (i) the Ibero Group
advertising on the Internet site of the Company and the Company advertising on
media networks of the Ibero Group and its Affiliates (including agreements
whereby the Company will utilize media networks of the Ibero Group and its
Affiliates as the preferred choice for its advertising expenditures); (ii) the
Company and the Ibero Group developing Internet sites for Ibero Group's media
networks as a preferred provider; (iii) the Company and the Ibero Group sharing
production and advertising sales assets; and (iv) the Company and the Ibero
Group sharing offices and other administrative overhead; provided, however, that
such opportunities are mutually beneficial for both Ibero Group and the Company.
The Ibero Group and the Company agree that these strategic business
opportunities are intended to be a part of a long-term strategic initiative.
ARTICLE 5. MISCELLANEOUS
5.1. 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 telecopier
with acknowledgment of receipt sent by telecopier 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. All such notices, requests,
consents and other communications shall be deemed to have been received: (a) in
the case of personal delivery, on the date of receipt; or (b) in the case of
telecopying, on the date of acknowledgment thereof.
5.2. 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 each of the Shareholders party hereto which holds an
Interest of one percent (1%) or more.
5.3. TERMINATION. This Agreement may be terminated at any
time by an instrument in writing signed by all of the Shareholders party hereto.
This Agreement shall terminate automatically as to any Shareholder which
transfers all of its El Sitio Shares, or upon the occurrence of a Qualifying IPO
(as defined in the Memorandum). Unless sooner terminated, this Agreement shall
terminate ten (10) 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 ten (10) years, as they may desire.
5.4. 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
17
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.
5.5. 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.
5.6. 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 contents are inserted
for convenience or reference only and shall not affect its meaning or
interpretation.
5.7. 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. Dollars or $ means the currency of the United States or
its foreign currency equivalent at the time the determination is made.
5.8. EXPENSES. 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.
5.9. GOVERNING LAW. This Agreement will be governed by, and
construed and enforced in accordance with, the laws of the British Virgin
Islands, without regard to its conflict of law rules.
5.10. DISPUTE RESOLUTION.
(a) Any and all disputes between or among the parties not
involving any Class B Shareholder arising in connection with or relating in any
way to the validity, construction, meaning, enforceability or performance of
this Agreement shall be settled by binding arbitration in accordance with the
rules of arbitration then in effect (the "ICC Rules") of the International
Chamber of Commerce (the "ICC"). Any party or parties electing to refer a matter
to arbitration pursuant hereto (the "Petitioner") shall promptly deliver written
notice (the "Arbitration Notice") to the other parties that it wishes to
commence an arbitration proceeding under this Section 5.10. The Arbitration
Notice shall set forth the matter being referred to arbitration and the name of
the individual selected by the Petitioner as one of the arbitrators.
18
(b) There shall be three (3) arbitrators, and each party to
the arbitration shall select one (1) arbitrator. Within twenty (20) days of
receipt of the Arbitration Notice, the other party to such arbitration (the
"Respondent") shall appoint an arbitrator (who shall have appropriate
qualifications in relation to the matter in dispute) and notify the Petitioner
of such appointment and submit its counter statement, if any, of the matter
being referred to arbitration. If the Respondent fails to appoint an arbitrator
within such twenty (20) day period, the Petitioner shall request the ICC
President to appoint a second arbitrator who shall have appropriate
qualifications in relation to the matter in dispute. Within twenty (20) days
after appointment of the second arbitrator, the two arbitrators shall appoint
the third arbitrator. If the two arbitrators fail to appoint the third
arbitrator within such twenty (20) day period, either party to the arbitration
may request that the ICC President appoint the third arbitrator, who shall have
appropriate qualifications in relation to the matter in dispute. All three (3)
arbitrators shall be bilingual (Spanish/English). In the event that there are
more than two (2) parties to such arbitration, all three (3) arbitrators shall
be appointed by the ICC President.
(c) The arbitration proceedings shall be conducted in the
English and Spanish languages in London, England, in accordance with the ICC
Rules, and all documents in connection with any such proceedings shall be
submitted in the English or Spanish languages or with a complete and accurate
English or Spanish (as applicable) language translation. In any arbitration, the
decision of the arbitrators shall be final and binding on the parties to the
arbitration and judgment on the decision may be entered in and enforced in any
court of competent jurisdiction in accordance with the New York Convention on
the Recognition and Enforcement of Arbitral Awards. The substantially prevailing
party in such arbitration, in addition to all other relief provided, shall be
entitled to an award of all its reasonable costs and expenses including attorney
fees and expenses and deposits and payments to the ICC.
(d) Each party hereto hereby agrees that each of the parties
hereto shall have the right to seek appropriate emergency or equitable relief to
preserve the arbitral matter or to otherwise protect its rights pending
resolution of the arbitral matter, whether in New York, New York, Argentina or
in any other jurisdiction.
(e) The parties agree to negotiate in good faith to resolve
any dispute involving the Class B Shareholders regarding arising in connection
with or relating in any way to the validity, construction, meaning,
enforceability or performance of this Agreement. If the negotiations do not
resolve the dispute to the reasonable satisfaction of both parties to the
dispute, then each party shall nominate one senior officer of the rank of Vice
President or higher as its representative. These representatives shall, within
thirty (30) days of a written request by either party to call such a meeting,
meet in person and alone (except for one assistant for each party) and shall
attempt in good faith to resolve the dispute. If the disputes cannot be resolved
by such senior managers in such meeting, the parties agree that they shall, if
requested in writing by either party, meet within thirty (30) days after such
written notification for one day with an impartial mediator and consider dispute
resolution alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days after the one-day
mediation, either party may begin litigation proceedings. This procedure shall
be a prerequisite before taking any additional action hereunder.
19
5.11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of each of the Shareholders and their
respective executors, administrators and personal representatives and heirs and
their successors and assigns. The rights and obligations of any Shareholder
hereunder shall inure to the benefit of and be binding upon any transferee of
such Shareholder, if (i) such transferee agrees in writing to be bound by the
provisions of this Agreement and (ii) the Interest of such transferee would,
immediately upon becoming a party to this Agreement, equal or exceed five
percent (5%).
5.12. 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.
5.13. COMPLETE AGREEMENT. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous arrangements or understandings, whether
written or oral, between or among any of the parties hereto, with respect to the
subject matter hereof, other than the Registration Rights Agreement and the
Syndication Agreement among the Initial Shareholders, dated as of June 10, 1999.
5.14. 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.
5.15. CONFLICT WITH MEMORANDUM. In the event that any of the
terms or provisions contained herein conflict with any of the provisions
contained in the Memorandum, the provisions of this Agreement shall govern to
the extent consistent with applicable British Virgin Islands law, as in effect
from time to time.
5.16. 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 5.16 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 5.16;
20
(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 5.16 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 4 hereto.
[The rest of this page has been intentionally left blank]
21
IN WITNESS 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
Attn: 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
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
UTILITIVEST II, L.P.
By: Utilitivest II, L.L.C., its General Partner
By:
-------------------------------------
Name: Hurdle X. Xxx III
Title: Vice President and Director of
Utilitivest II, L.L.C.
Notice address:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
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:
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
-----------------------------------------
[Signature Page to Amended and Restated Shareholders' 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 Shareholders' 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 Shareholders' 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: (617) 975-320
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 Shareholders' Agreement -
El Sitio, Inc.]
TOWER PLUS INTERNATIONAL CORP.
By:
------------------------------------------
Notice Address:
x/x Xxxxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxxxxxxxxx 000 XX
00000 Xxxxxxxxxx Xxxxxxx
Telephone: (00 00) 000-0000
Telecopier: (00 00) 000-0000
[Signature Page to Amended and Restated Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' 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 Shareholders' Agreement -
El Sitio, Inc.]
THE XXXXX X. XXXXXX TRUST OF 1996
By:
------------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, F.B.O. XXXXX XXXXXX
By:
------------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, F.B.O XXXXX XXXXX XXXXXX, XX.
By:
------------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, F.B.O. XXXXX XXXXXX XXXXXXX
By:
------------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
THE XXXXX XXXXXX IRREVOCABLE TRUST
OF 1997, F.B.O. XXXXX XXXXXX XXXXXX
By:
------------------------------------------
Title:
Notice Address:
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
XXXXXXX XXXXXX
By:
------------------------------------------
Notice Address:
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
VAMAGRA S.A.
By:
------------------------------------------
Title:
Notice Address:
Pedras 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
SUMMIT INVESTMENT MANAGEMENT LTD.
By:
------------------------------------------
Title:
Notice Address:
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with a copy to:
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ELINSTAR INTERNATIONAL CORP.
By:
------------------------------------------
Title:
Notice Address:
------------------------------------
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------------------------------------
------------------------------------
with a copy to:
------------------------------------
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XXXXXXXXX LIMITED
By:
------------------------------------------
Title:
Notice Address:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
with a copy to:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
FUTURIT S.A.
By:
------------------------------------------
Title:
Notice Address:
x/x Xxxxxxx 0000, Xxxx 00X
0000, Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxx Xxxxxxxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
QUANTUM DOLPHIN PLC
By:
------------------------------------------
Title:
Notice Address:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
XXX.XXX INC.
By:
------------------------------------------
Title:
Notice Address:
c/o Sociedad Latinoamericana de
Inversiones X.X.
Xxxxxxxx 000 Xxxx 00
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attention: Xxxxxxxxx Xxxxxxxx
Telephone: (00 00) 0000-0000
Telecopier: (54 11) 4313
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
DUNAS OVERSEAS LTD.
By:
------------------------------------------
Title:
Notice Address:
c/o Xxxxxxxx Xxxx Xxxxxx
Plaza Independencia 811 XX
00000 Xxxxxxxxxx Xxxxxxx
Telephone: (00 00) 000-0000
Telecopier: (00 00) 000-0000
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
IMPSAT CORPORATION
By:
------------------------------------------
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 Shareholders' Agreement -
El Sitio, Inc.]
XXXXX XXXXX XXXXX
By:
------------------------------------------
Title:
Notice Address:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx
Attn: Xxxxxxx Cibria Company
Telephone: (00 00) 0000-0000
Telecopier: (00 00) 0000-0000, ext. 104
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
XXXXXX XXXXXXXXXX
By:
------------------------------------------
Title:
Notice Address:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
[Signature Page to Amended and Restated Shareholders' Agreement -
El Sitio, Inc.]
INTEL ATLANTIC, INC.
By:
------------------------------------------
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 a copy 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 Shareholders' Agreement -
El Sitio, Inc.]
EXHIBIT 4
November 9, 1999
Intel Atlantic, Inc.
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 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 or Intel
Atlantic, Inc. shall be governed by the terms of the Corporate Non-Disclosure
Agreement No. 7626010, dated October 18, 1999, executed by the Company and Intel
Corporation, 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.
2
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:
-------------------------- --------------------------
3
