Exhibit 10.7
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH LAWS, OR IF, IN
THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO AMERICA ONLINE LATIN AMERICA,
INC., AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THIS LEGEND SHALL BE
ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
WARRANT TO PURCHASE UP TO ______ SHARES OF STOCK
OF AMERICA ONLINE LATIN AMERICA, INC.
No.: W-1 ____________ __, 2000
THIS CERTIFIES THAT, America Online, Inc. ("Holder") or its registered
assigns, for value received, is entitled to purchase, on the terms and subject
to the conditions hereinafter set forth, from America Online Latin America,
Inc., a Delaware corporation (the "Company"), at any time, and from time to
time, during the period beginning on the date hereof and ending at 5:00 p.m.
local Miami, Florida time on the tenth anniversary of the date hereof (the
"Expiration Date"), that number of shares (the "Warrant Shares") of Series B
redeemable convertible preferred stock, par value one cent ($0.01) per share, of
the Company (the "Series B Preferred Stock"), as determined in accordance with
the provisions of Section 2 hereof.
SECTION 1. EXERCISE PRICE. The exercise price per Warrant Share at which
this Warrant (the "Warrant") may be exercised shall be [equal to the initial
public offering price of the Class A Common Stock] ________ Dollars ($_____)
(the "Exercise Price"), as adjusted from time to time in accordance with the
provisions of Section 4 hereof. If this Warrant is exercised for Warrant
Securities (as defined below) other than the Series B Preferred Stock, the
Exercise Price for each share of such other Warrant Securities shall be
calculated by dividing the then current Exercise Price per share of Series B
Preferred Stock by the then effective Series B Conversion Ratio (as such term is
defined in the Company's Certificate of Incorporation, as the same may be
amended and restated from time to time).
SECTION 2. EXERCISE OF WARRANT.
2.1. Number of Warrant Shares for Which Warrant is Exercisable.
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(a) Number and Type of Shares. The number of Warrant Shares for which
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this Warrant may be exercised at any time prior to its expiration shall be equal
to _________________ (_________) [6% of the Company's outstanding Class A
Common Stock as of the date of this Warrant, including any shares that may be
issued upon exercise of an over-allotment option in the initial public offering
and the total number of shares of Class A Common Stock reserved for issuance
upon conversion of outstanding capital stock and up to 5% of such number of
outstanding and reserved shares to be reserved for issuance under the Company's
employee stock option plan], as adjusted and in effect at the
date of any partial or full exercise of this Warrant. If any over-allotment
option is exercised by the Company's underwriters in connection with the
Company's initial public offering after the number of shares into which this
Warrant is exercisable is established, the number of shares into which this
Warrant is exercisable shall be increased appropriately. At the option of the
Holder, in its sole discretion, the Holder may exercise this Warrant for Warrant
Shares consisting of (i) shares of Series B Preferred Stock, and/or (ii) shares
of the Company's Class B common stock, par value one cent ($0.01) per share (the
"Class B Common Stock"), and/or (iii) shares of the Company's Class A common
stock, par value one cent ($0.01) per share (the "Class A Common Stock", and
collectively with the Series B Preferred Stock and the Class B Common Stock, the
"Warrant Securities"). At any time that the Holder elects to exercise this
Warrant for shares of Class B Common Stock or Class A Common Stock, the maximum
number of shares of each such class that the Holder shall be entitled to receive
shall be equal to (y) in the case of Class B Common Stock, up to that number of
shares of Class B Common Stock then issuable upon conversion of the maximum
number of shares of Series B Preferred Stock then issuable upon exercise of this
Warrant, and (z) in the case of Class A Common Stock, up to that number of
shares of Class A Common Stock then issuable upon conversion of the maximum
number of shares of Class B Common Stock then issuable upon conversion of the
maximum number of shares of Series B Preferred Stock then issuable upon exercise
of this Warrant.
2.2. Procedure for Exercise of Warrant.
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(a) To exercise this Warrant in whole or in part, the Holder
shall deliver to the Company, at its principal executive office (or such other
office of the Company in the United States as the Company may designate by
notice in writing to the Holder) on or prior to 5:00 p.m. local Miami, Florida
time on the Expiration Date, (i) the Warrant Certificate attached hereto
completed to specify the type and number of Warrant Securities as to which the
Holder is electing to exercise under this Warrant, (ii) consideration in an
amount equal to the aggregate Exercise Price of the Warrant Securities being
purchased, consisting of (A) cash or a certified or official bank check, payable
to the order of the Company, (B) cancellation by the Holder of indebtedness of
the Company to the Holder, or (C) a combination of (A) and (B) above, and (iii)
if this Warrant is being exercised in whole or the last fraction of this Warrant
is being exercised, this Warrant.
(b) Notwithstanding any provisions herein to the contrary, if
the fair market value of one share of the Warrant Securities for which this
Warrant is being exercised is greater than the Exercise Price for one share of
such Warrant Securities (determined at the date of calculation, as set forth
below), in lieu of exercising this Warrant for cash, the Holder may elect to
receive shares of such Warrant Securities equal to the value (as determined
below) of this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company, together with the properly
endorsed Warrant Certificate, substantially in the form as attached hereto, in
which event the Company shall issue to the Holder that number of shares of such
Warrant Securities computed using the following formula:
WS = WSP x (FMV-EP)
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FMV
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WHERE:
WS equals the number of shares of the applicable Warrant Securities to be
issued to the Holder;
WSP equals the number of shares of the applicable Warrant Securities
purchasable under the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being exercised (at the date of such
calculation);
FMV equals the fair market value of one share of the applicable Warrant
Securities being exercised (at the date of such calculation); and
EP equals the per share Exercise Price of the applicable Warrant Securities (as
adjusted to the date of such calculation) of the Warrant.
For purposes of the above calculation, the fair market value ("FMV") of one
share of the Warrant Securities shall be determined in accordance with the
provisions of Section 2.3 hereof. Notwithstanding the foregoing, where there
exists a public market for the Class A Common Stock at the time of such
exercise, the FMV per share of (i) Class A Common Stock or Class B Common Stock
shall be equal to the average of the closing bid and asked prices of the Class A
Common Stock quoted in the Over-The-Counter Market Summary or the average of the
last reported sale price of the Class A Common Stock or the closing price quoted
on the Nasdaq National Market System or on any exchange on which the Class A
Common Stock is listed, whichever is applicable, as published in The Wall Street
Journal for the five (5) trading days prior to the date of determination of the
FMV, and (ii) Series B Preferred Stock shall be equal to the FMV of one share of
Class B Common Stock, calculated as set forth in clause (i) above, multiplied by
the then effective Series B Conversion Ratio. Upon receipt of the Warrant
Certificate, the consideration, if any, and the Warrant, as applicable, the
Holder shall be deemed to be the holder of record of the Warrant Securities
issuable upon such exercise, notwithstanding that the stock transfer books of
the Company shall then be closed or that certificates representing such Warrant
Securities shall not then be actually delivered to the Holder, and the Company
shall, as promptly as practicable, and in any event within five (5) business
days thereafter, execute or cause to be executed and delivered to the Holder, or
as the Holder may direct, a certificate or certificates representing the
aggregate number of shares of Warrant Securities specified in said Warrant
Certificate. Each stock certificate so delivered shall be in such denomination
as may be requested by the Holder. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of said stock
certificate or certificates, deliver to the Holder a certificate evidencing the
fraction of this Warrant which remains exercisable. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
execution and delivery of stock certificates pursuant to this Section 2.2,
except that, in case such stock certificates shall be registered in a name or
names other than the name of the Holder, funds sufficient to pay all stock
transfer taxes, which shall be payable upon the execution and delivery of such
stock certificate or certificates, shall be paid by the Holder to the Company at
the time of delivering this Warrant to the Company as mentioned above.
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2.3 Fair Market Value. Except as set forth above, for determining
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the FMV of one share of Warrant Securities in connection with a "net exercise"
pursuant to the provisions of Section 2.2 hereof, the following shall apply:
(a) Agreement of the Company and the Holder. If the Company and the
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Holder can agree in writing as to the FMV, such agreed value shall be the FMV.
If no agreement on the FMV can be reached within five (5) days from the date of
the exercise of this Warrant, then the FMV shall be determined pursuant to
subsection (b) below.
(b) Third Party Appraisal. If the FMV is not agreed upon as provided
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in subsection (a) above within the period therein stated, then five (5) days
thereafter, an appraiser or appraisers shall be jointly selected by the Company
and the Holder, and the determination of such jointly selected appraiser or
appraisers as to the FMV shall be binding and conclusive upon all parties. If
the Company and the Holder are unable to reach an agreement as to an appraiser,
the provisions of subsection (c) below shall apply. For purposes of this
subsection (b), the FMV shall take into account, among other things, earnings
and book value of the Company, but shall not take into account any minority
stockholder, marketability or other such discount.
(c) Additional Appraiser. If the Company and the Holder do not agree
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upon the selection of an appraiser or appraisers, as provided in subsection (b)
within the period therein stated, then, within three (3) days after the
expiration of the five (5) day period provided for in subsection (b) above, each
of the Company and the Holder shall deliver, by written notice to the other, a
list of three appraisers and each of the Company and the Holder shall select one
(1) appraiser from the list delivered by the other. If either party falls to
deliver a list of appraisers or to select an appraiser from such list within
said three (3) day period, the other party may select an appraiser from its list
and such appraiser shall serve as the sole appraiser. Each of the appraisers so
selected shall, within ten (10) days of being selected, determine the FMV. If
the lower of the two (2) appraisals is at least ninety percent (90%) of the
higher appraisal, then the FMV shall be equal to the average of the two (2)
appraisals. If the lower of the two (2) appraisals is less than ninety percent
(90%) of the higher appraisal, then the two (2) appraisers shall appoint a third
appraiser within three (3) days after the end of said ten (10) day period, and
such third appraiser shall, within ten (10) days of being selected, determine
the FMV. The FMV shall be equal to (A) the average of (x) the third appraisal
and (y) whichever of the first two appraisals is closest in dollars to the third
appraisal or (B) the third appraisal, if such appraisal is exactly mid-way
between the first two appraisals. The determination of such appraiser shall be
determinative of the FMV and shall be binding, final and conclusive on the
Company and the Holder.
(d) Costs of Appraisals. The parties shall share equally the entire
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cost of any appraisals hereunder.
2.4 Transfer Restriction Legend. This Warrant and each certificate
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for Warrant Securities initially issued upon exercise of this Warrant, unless at
the time of exercise such Warrant Securities are registered under the Securities
Act of 1933, as amended (the "Act"), shall bear the following legend (and any
additional legend required by any securities exchange upon
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which such Warrant Securities may, at the time of such exercise, be listed and
any applicable state securities administration or commission) on the face
thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD
OR TRANSFERRED UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH LAWS,
OR IF, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO AMERICA ONLINE
LATIN AMERICA, INC., AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
2.5 Acknowledgment of Continuing Obligation. The Company will, at
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the time of the exercise of this Warrant, in whole or in part, upon request of
the Holder, acknowledge in writing its continuing obligation to the Holder in
respect of any rights to which the Holder shall continue to be entitled after
such exercise in accordance with this Warrant, provided, that the failure of the
Holder to make any such request shall not affect the continuing obligation of
the Company to the Holder in respect of such rights.
2.6 Investment Representation. The Holder of this Warrant, by
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acceptance hereof, acknowledges that (i) the Holder is an accredited investor
within the definition of Regulation D of the Act, (ii) this Warrant and, upon
exercise, the Warrant Securities, are being acquired solely for the Holder's own
account and not as a nominee for any other party, and for investment, and (iii)
the Holder will not offer, sell, transfer, assign or otherwise dispose of this
Warrant or the Warrant Securities issued upon exercise hereof, unless registered
under the Act and applicable state securities laws or pursuant to an opinion of
counsel reasonably satisfactory to the Company that an exemption from
registration under such laws is available. Upon exercise of this Warrant, the
Holder shall, if requested by the Company, confirm, in writing, in a form
reasonably satisfactory to the Company, that the Warrant Securities so purchased
are being acquired solely for the Holder's own account and not as a nominee for
any party for investment.
2.7 Fractional Shares. No fractional shares or scrip representing
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fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the current FMV of a share, determined in accordance with the
provisions of Sections 2.2 and 2.3 hereof.
2.8 Registration Rights. The shares of Class A Common Stock issuable
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upon exercise of this Warrant or upon the conversion of the Class B Common Stock
that is issuable upon conversion of the Series B Preferred Stock that is
issuable upon exercise of this Warrant are entitled to registration rights
granted in and pursuant to that Registration Rights Agreement of even date
herewith by and between the Company, the Holder and the other parties named
therein.
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SECTION 3. OWNERSHIP, TRANSFER.
3.1 Ownership of this Warrant. The Company may deem and treat the
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person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Section 3.
3.2 Exchange, Transfer and Replacement. This Warrant is exchangeable
----------------------------------
upon the surrender hereof by the Holder to the Company at its office or agency
for new Warrants of like tenor and date representing in the aggregate the right
to purchase the number of Warrant Shares purchasable hereunder, each of such new
Warrants to represent the portion of this Warrant exchanged as shall be
designated by the Holder at the time of such surrender. Subject to the terms of
this Warrant, this Warrant and all rights hereunder are transferable in whole or
in part upon the books of the Company by the Holder in person or by duly
authorized attorney, and a new Warrant shall be made and delivered by the
Company, of the same tenor as this Warrant but registered in the name of the
transferee, upon surrender of this Warrant duly endorsed at said office or
agency of the Company. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will make and deliver a new Warrant of like
tenor, in lieu of this Warrant. This Warrant shall be promptly canceled by the
Company upon the surrender hereof in connection with any exchange, transfer or
replacement. The Company shall pay all expenses, taxes (other than stock
transfer taxes and income taxes) and other charges payable in connection with
the preparation, execution and delivery of Warrant Securities pursuant to this
Section 3. Notwithstanding the foregoing, this Warrant may not be transferred
to any Person other than a Wholly Owned Affiliate (as such terms are defined in
the Certificate of Incorporation) of America Online, Inc.
SECTION 4. ADJUSTMENT OF EXERCISE PRICE.
4.1 Adjustment of Exercise Price.
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(a) Subdivision or Combination of Shares. If the Company, at any time
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while this Warrant is outstanding, shall subdivide or combine any of its Warrant
Securities, the Exercise Price shall be proportionately reduced, in case of
subdivision of shares, to reflect the increase in the total number of shares of
such Warrant Securities outstanding as a result of such subdivision, as at the
effective date of such subdivision, or shall be proportionately increased, in
the case of combination of shares, to reflect the reduction in the total number
of shares of such Warrant Securities outstanding as a result of such
combination, as at the effective date of such combination.
(b) Stock Dividends. If the Company, at any time while this Warrant
---------------
is outstanding, shall pay a dividend in, or make any other distribution of, any
of its Warrant Securities, the Exercise Price shall be adjusted (as at the date
of such payment or other distribution) to that price determined by multiplying
the Exercise Price in effect immediately prior such payment or other
distribution, by a fraction (i) the numerator of which shall be the total number
of shares of such Warrant Securities outstanding immediately prior to such
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dividend or distribution, and (ii) the denominator of which shall be the total
number of shares of such Warrant Securities outstanding immediately after such
dividend or distribution (plus if the Company paid cash for fractional shares,
the number of additional shares which would have been outstanding had the
Company issued fractional shares in connection with said dividends).
(c) Adjustment of the Warrant Securities. Upon any adjustment in the
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Exercise Price as the result of the provisions of this Section 4, the number of
Warrant Securities purchasable pursuant to this Warrant shall be adjusted so
that the adjusted number of Warrant Securities shall be equal to the number of
Warrant Securities then purchasable hereunder multiplied by a fraction (i) the
numerator of which shall be the Exercise Price immediately prior to such
adjustment, and (ii) the denominator of which shall be the Exercise Price
immediately after such adjustment.
(d) No adjustment in the Exercise Price shall be required pursuant to
Section 2.1 or this Section 4 unless such adjustment would require an increase
or decrease of at least $.05 in such price; provided, however, that any
adjustments which by reason of this subsection are not required to be made shall
be carried forward and taken into account in any subsequent adjustment required
to be made hereunder.
(e) Whenever the Exercise Price is adjusted, as herein provided, the
Company shall promptly cause a notice setting forth the adjusted Exercise Price
and adjusted number of Warrant Shares issuable upon exercise of each Warrant to
be mailed to the Holder, at its address appearing in the Warrant Register, and
shall cause a certified copy thereof to be mailed to its transfer agent, if any.
(f) All calculations under Section 2.1 or this Section 4 shall be made
to the nearest cent or to the nearest share of Warrant Securities, as the case
may be.
(g) Irrespective of any adjustments in the Exercise Price or the
number or kind of Warrant Securities purchasable upon exercise of this Warrant,
Warrants theretofore or thereafter issued may continue to express the same price
and number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Warrant.
(h) If the Company shall admit any "Strategic Partner" (i.e., any Person
----
who acquires 25% or more of the equity of the Company and who provides a
strategic benefit to the Company in the form of a contractual relationship or
contribution of material, in-kind assets) the number of Warrant Securities
purchasable pursuant to this Warrant shall be increased by an amount equal to
the number of Warrant Securities issued to the Strategic Partner multiplied by
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six percent (6%). The Exercise Price will not be adjusted in such event.
4.2 Reorganization, Reclassification, Recapitalization, Consolidation,
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Merger or Sale. If any capital reorganization, reclassification or
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recapitalization of the capital stock of the Company, or consolidation or merger
of the Company, or sales of all or substantially all of its assets to another
entity, shall be effected in such a way that holders of any of the Warrant
Securities shall be entitled to receive stock, securities, cash or assets with
respect to or in exchange for any of the Warrant Securities, then, as a
condition of such reorganization,
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reclassification, recapitalization, consolidation, sale or merger, lawful and
adequate provisions shall be made whereby each holder of Warrants shall
thereupon be entitled to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the Warrant Securities, such shares
of stock, securities, cash or assets as may be issued or payable with respect to
or in exchange for a number of outstanding shares of any of the Warrant
Securities equal to the number of shares of Warrant Securities as would have
been received upon exercise of the Warrants at the Exercise Price then in effect
immediately before such reorganization, reclassification, recapitalization,
consolidation, sale or merger, and in any such case appropriate provisions shall
be made with respect to the rights and interests of the holders to the end that
the provisions hereof (including without limitation provisions for adjustments
of the applicable Exercise Price) shall thereafter be applicable, as nearly as
may be practicable, in relation to any rights to acquire or shares of stock or
securities delivered to holders in connection with such reorganization,
reclassification, recapitalization, consolidation, sale or merger. Prior to the
consummation of any consolidation or merger or sale of assets of the Company,
the successor corporation resulting from such consolidation or merger, or the
purchaser of such assets, shall agree in writing to be bound by the provisions
hereof. Before taking any action that would cause an adjustment reducing the
Exercise Price below the then-existing par value of the shares of any of the
Warrant Securities issuable upon exercise of this Warrant, the Company shall
take any corporate action that may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of such Warrant Securities at such adjusted Exercise Price.
SECTION 5. COVENANTS OF THE COMPANY. The Company hereby covenants and
agrees that:
5.1. Reservation of Shares. The Company will reserve and set apart and
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have at all times, free from pre-emptive rights, (i) a number of shares of
authorized but unissued Series B Preferred Stock deliverable upon the exercise
of the Warrant, (ii) a number of shares of authorized but unissued Class B
Common Stock deliverable upon the conversion of the Series B Preferred Stock,
and (iii) a number of shares of authorized but unissued Class A Common Stock
deliverable upon the conversion of the Class B Common Stock issuable upon
conversion of the Series B Preferred Stock, and, in each case, any other rights
or privileges provided for herein sufficient to enable it at any time to fulfill
all its obligations hereunder.
5.2. Avoidance of Certain Actions. The Company will not, by amendment
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of its
organizational documents or through any reorganization, transfer of assets,
consolidation, merger, issue or sale of securities or otherwise, avoid or take
any action which would have the effect of avoiding the observance or performance
of any of the terms to be observed or performed hereunder by the Company, but
will at all times in good faith assist in carrying out all of the provisions of
this Warrant and in taking of all such action as may be necessary or appropriate
in order to protect the rights of the Holder of this Warrant against dilution or
other impairment.
5.3. Governmental Approvals. If any shares of any of the Warrant
----------------------
Securities required to be reserved for the purposes of exercise of this Warrant
require registration with or approval of any governmental authority under any
Federal law (other than the Act) or under any state law
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before such shares may be issued upon exercise of this Warrant, the Company
will, at its expense, as expeditiously as possible, use its best efforts to
cause such shares to be duly registered or approved, as the case may be.
5.4. Binding on Successors. This Warrant shall be binding upon any entity
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succeeding to the Company by merger, consolidation or acquisition of all or
substantially all of the Company's assets.
SECTION 6. NOTIFICATIONS BY THE COMPANY. In case at any time:
(a) the Company shall declare any dividend payable in stock upon any
of the Warrant Securities or make any distribution (other than cash dividends
which are not in a greater amount per share than the most recent cash dividend
or, with respect to the Series B Preferred Stock, the stated dividend rate
thereof) to the holders of any of the Warrant Securities;
(b) the Company shall propose to make an offer for subscription pro
rata to the holders of any of its Warrant Securities of any additional shares of
stock of any class or other rights;
(c) there shall be proposed any other transaction of a type referred
to in Section 4 hereof, and
(d) there shall be proposed a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then, in any one or more of such cases, the Company shall give written notice to
the Holder of the date on which (i) the books of the Company shall close or a
record shall be taken for such dividend, distribution, subscription rights, or
other transaction, and (ii) such reorganization, reclassification,
consolidation, merger, sale, dissolution, other transaction, liquidation or
winding-up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of record of such shares of Warrant Securities
shall participate in such dividend, distribution or subscription rights, or
shall be entitled to exchange their Warrant Securities for, or receive in
respect of their Warrant Securities, securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger, sale,
dissolution, other transaction, liquidation, or winding-up, as the case may be.
Such written notice shall be given not less than five (5) Business days prior to
the taking of the action in question.
SECTION 7. NOTICES. Any notice or other document required or permitted to
be given or delivered to the Holder shall be delivered at, or sent by certified
or registered mail to the Holder at the address listed in the stock records of
the Company or to such other address as shall have been furnished to the Company
in writing by such Holder in accordance herewith. Any notice or other document
required or permitted to be given or delivered to the Company shall be delivered
at, or sent by certified or registered mail to, the principal office of the
Company, at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Chief Executive Officer or such other name or address as shall have
been furnished to the Holder by the Company in accordance herewith.
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SECTION 8. LIMITATION OF LIABILITY. No provision hereof, in the absence of
affirmative action by the Holder to purchase shares of Warrant Securities, and
no mere enumeration herein of the rights or privileges of the Holder, shall (a)
give rise to any rights of the Holder as a stockholder of the Company, or (b)
give rise to any liability of the Holder for the Exercise Price or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
SECTION 9. GOVERNING LAW. This Warrant shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without giving effect to its conflicts of laws provisions.
SECTION 10. MISCELLANEOUS. No term of this Warrant may be amended, except
with the joint written consent of the Holder and the Company. The headings in
this Warrant are for purposes of reference only and shall not affect the meaning
or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, America Online Latin America, Inc. has caused this
Warrant to be signed by its duly authorized officer on the date first written
above.
AMERICA ONLINE LATIN AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
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ASSIGNMENT
TO BE EXECUTED BY THE REGISTERED HOLDER IF IT DESIRES AND
IS PERMITTED TO TRANSFER THE WITHIN WARRANT OF
AMERICA ONLINE LATIN AMERICA, INC.
FOR VALUE RECEIVED, ____________________ hereby sells, assigns and
transfers unto ______________________ the right to purchase ___________ of the
number of shares of Warrant Securities covered by the within Warrant, and does
hereby irrevocably constitute and appoint ___________________, attorney to
transfer the Warrant on the books of the Company with full power of
substitution. All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Warrant to which this Assignment is
attached.
Signature:________________________________(SEAL)
Address: _________________________________
_________________________________
Dated:_________________
In the presence of: [Name of Xxxxxx-Owned Affiliate]
_________________ By:________________________
NOTICE:
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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WARRANT CERTIFICATE
TO BE EXECUTED BY THE REGISTERED HOLDER
IF IT DESIRES TO EXERCISE THE WITHIN WARRANT OF
AMERICA ONLINE LATIN AMERICA, INC.
The undersigned hereby irrevocably exercises the right to purchase:
(i) __________ shares of Series B Preferred Stock, and/or
(ii) __________ shares of Class B Common Stock, and/or
(iii) __________ shares of Class A Common Stock,
obtainable by exercise of the within Warrant, according to the conditions
thereof and (y) herewith makes payment of the Exercise Price in the amount of
$___________ for such shares in full, or (z) elects to utilize its "net
exercise" option under Section 2.2(b) of the Warrant, in which case the
calculation of such net exercise is set forth below. All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Warrant to which this Warrant Certificate is attached.
Net Exercise (see page 3 of the Warrant for an explanation of the formula):
------------
For Series B Preferred Stock:
WS = WSP x (FMV-EP) results in _____________= ____________ shares of Series
-------------- B Preferred Stock
FMV
For Class B Common Stock:
WS = WSP x (FMV-EP) results in _____________= ___________ shares of Class B
-------------- Common Stock
FMV
For Class A Common Stock:
WS = WSP x (FMV-EP) results in _____________= ___________ shares of Class A
-------------- Common Stock
FMV
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Signature:___________________(SEAL)
Address:_____________________
_____________________
Dated:_____________________
In the presence of : [Name of Xxxxxx-Owned Affiliate]
___________________________ By:____________________
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