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Exhibit 2.20
[script:] 20 (Second)
In Madrid, on September 13, 1999
AGREEMENT BETWEEN,
AS ONE PARTY:
TELEFONICA INTERACTIVA, S.A. (hereinafter referred to as "T.I."), an
entity with registered office in Madrid at Calle Gran Via 28, with Taxpayer's
Identification No. A-82/196080, represented herein BY Mr. Xxxx Xxxxx Xxxxx de
Buruaga, who, for the purposes hereof, is exercising the powers conferred to him
before Xx. Xxxx Xxxxxxx Xxxxxxxx Ipiens, notary of Madrid, on December 14, 1998,
as number 5,399 in his official file;
AS ANOTHER PARTY:
INFOSEARCH HOLDINGS (hereinafter referred to as "INFOSEARCH"), an entity
with Luxembourg nationality and registered office in Luxembourg at Aldringen 23,
represented herein by Xx. Xxxx Xxxxxx Xxxxxx, who, for the purposes hereof, is
exercising the powers conferred to him by the Board of Directors of the company;
AND, AS ANOTHER PARTY:
TELEFONICA, SA. (hereinafter referred to as "TELEFONICA"), an entity with
registered office in Madrid at Calle Gran Via 28, with Taxpayer's Identification
No. A-28/O15.865, represented herein by Mr. Xxxx Xxxxx Mas Xxxxxx, who, for the
purposes hereof, is exercising the powers conferred to him before Xx. Xxxxxxx
Xxxxxxx Xxxx, notary of Madrid, on July 16, 1997, as number 4,439 in his
official file.
The three parties in agreement, represented herein as set forth,
reciprocally acknowledge the legal capacity necessary for signing the present
document and bind themselves hereto and, for such purpose, they set forth the
following
PREMISES:
I. That, on April 15, 1999, T.I. acquired from INFOSEARCH the entirety of the
company shares representing the capital stock of the entity ORDENAMIENTO
DE LINKS ESPECIALIZADOS, S.L. (hereinafter referred to as "OLE"), by
virtue of which, at present, T.I. is the sole holder of the mentioned
shares in OLE.
II. That, on the same date of April 15, 1999, T.I. and INFOSEARCH also signed
an agreement by means of which they govern various aspects relating to the
progress of OLE, the composition of its management body, increases in
capital, the reacquisition of shares by INFOSEARCH, the listing of OLE on
the securities exchange, as well as other considerations. The mentioned
agreement of April 15, 1999 is incorporated as an exhibit hereto.
III. That, since that date of April 15, 1999, and up to today, TELEFONICA, the
sole shareholder of T.I., in view of the evolution of the markets, the
development of the businesses relating to the internet and other aspects,
has decided to channel its interests relating to the internet through T.I.
[3 sets of script initials]
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IV. That, as of today's date, the capital stock of T.I. is 389,999,170 Euros
represented by 194,995,585 shares with a par value of 2 Euros each, which
are common shares and are of the same class, with all of them owned by
TELEFONICA.
V. That TELEFONICA is interested in the placement of T.I. on the financial
markets, for which purpose it has decided to initiate a public placement
of the shares of T.I. by means of a public offering and intends that all
of this take place prior to this coming December 31, 1999.
VI. That, taking into consideration all of the above, the parties have reached
an agreement to replace the entirety of the content relating to
obligations adopted in the contract dated April 15, 1999 with that set
forth in the present contract, with the understanding that the rights and
obligations established therein are equivalent in economic and legal terms
to those initially agreed to in the mentioned contract.
VII. That, as a result of all of the above, the three entities in agreement
herein, by virtue of their respective interests, have agreed to establish
a new contractual framework to govern their relations and, for such
purposes, they
STIPULATE
One. TELEFONICA undertakes to enable INFOSEARCH to acquire shares
representing the capital stock of T.I. which represent, by means of
the increase in capital referred to in the following paragraph,
2.4649% of the new capital stock of T.I. (hereinafter referred to as
the Shares) at a total price, with the issue premium, if any,
included, of TWENTY-ONE MILLION FIVE HUNDRED AND FORTY THOUSAND UNITED
STATES DOLLARS (US $21,540,000), which shall be converted into Spanish
pesetas according to the official rate of exchange for the dollar on
the date of the signing of the present contract.
This acquisition is to be effected by means of the subscription of
4,928,000 common shares, fully paid-in and with all of the
organizational and economic rights which may pertain to them, by
INFOSEARCH in an increase in capital to take place at T.I. within a
period of time which shall not exceed 45 days from the date of the
signing of this agreement.
The amount of the capital increase referred to above shall be
delivered by means of a check or checks, not transferable by
endorsement, or a bank transfer or transfers for the total amount
within a period of five days from the adoption of the resolution to
increase the capital.
Two. On its part, INFOSEARCH undertakes to subscribe the shares of T.I.
referred to in Article One, and at the price indicated.
Three. The percentage of the shares, of the total capital stock of T.I.,
acquired by INFOSEARCH in accordance with Article One, is to be
reduced as a result of the capital increases established below, in
which INFOSEARCH shall not participate, to an equity holding of 1.76%
of the total capital stock which T.I. finally has by means of the
public placement of its shares, then represented by a total of
280,000,000 shares and thus with 4,928,000 shares pertaining to
INFOSEARCH.
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[three sets of script initials]
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If the number of shares represented by the capital stock of T.I., once
the public offering is carried out, is different from the envisioned
280,000,000 shares, the parties shall proceed to carry out the
corresponding, proportional adjustment by the number of shares owned
by INFOSEARCH so that the equity holding of INFOSEARCH in the final
capital of T.I. shall be 1.76% thereof, and this without any cost
whatsoever to INFOSEARCH.
The capital increases which T.I. undertakes to carry out, effected in
relation to implementing a placement of T.I. on the securities
exchange, are the following:
- That pertaining to the options plan in favor of executives of T.I.,
provided for at 5% of the capital, after the increase.
- That pertaining to the public offering.
INFOSEARCH waives such preemptive right in the mentioned capital
increases as it may be conferred by virtue of its status as a
shareholder of T.I.
In addition, and in order to facilitate the adoption of the company
resolutions necessary or convenient for proceeding to formulate the
public offering of shares of T.I. and the mentioned capital increases,
INFOSEARCH, in its capacity as shareholder of T.I., undertakes to
attend the General Meetings Of Shareholders which may be held for such
purposes and to vote in favor of the proposals for resolution
submitted for consideration provided that it does not contravene that
established in this contract and does not prejudice its own interests.
In the event that the businesses of Chile, Peru and Mexico do not
proceed to be included, T.I. must pay to INFOSEARCH the amount of XXX
XXXXXXX XXXX XXXXXXX XXX XXXXX XXXXXXXX XXXXXX XXXXXX DOLLARS (US
$1,540,000) pertaining to the advance made by INFOSEARCH for the
mentioned item.
Four. Upon carrying out the acquisition described in Article One and the
placement of T.I. on the financial markets, it shall be deemed that
the contract dated April 15, 1999 has been fully performed.
In the event that, upon reaching December 31, 1999, there has been no
placement of T.I. on the financial markets, both of the parties shall
have a term of two months, that is, up to March 1, 2000, in order to
demand that the other party transfer the shares acquired by INFOSEARCH
at the same price as that paid by the latter.
In the former eventuality, the contract dated April 15, 1999 shall
automatically resume full and total effectiveness with no need for any
additional act by the parties, with INFOSEARCH thereby again acquiring
the rights in its favor as recognized in the mentioned contract.
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[three sets of script initials]
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Five. INFOSEARCH undertakes, with respect to TELEFONICA, once ownership of
the Shares is acquired, not to transfer all or part of the said Shares
to any person or entity without the prior, express consent of
TELEFONICA; this is until such time as one year has elapsed from the
placement of the shares of T.I. on the financial markets and with the
exception of that provided for in the second paragraph of Article
Seven, below.
Six. On its part, T.I. undertakes, with respect to INFOSEARCH, not to sell
all or part of the equity holdings which it owns in the company
ORDENAMIENTOS [sic] DE LINKS ESPECIALIZADOS, S.L. without the prior
authorization of INFOSEARCH; this is until such time as the placement
of the shares of T.I. on the financial markets takes place.
Seven. Finally, INFOSEARCH undertakes to assume all such obligations as, with
respect to the transfer of shares or the offering thereof, may be
established within the framework of the contracts for underwriting the
public offering of shares of T.I., all of this provided that, upon the
passage of a maximum period of one year since the placement of T.I. on
the financial markets, INFOSEARCH may freely sell the entirety of its
4,928,000 shares subject to no condition whatsoever.
Without prejudice to that set forth above, through the placement of
T.I., INFOSEARCH at all times shall have the power to be able to
transfer the number of shares necessary in order to be able to cover
the payment obligations, to the pertinent credit institutions,
deriving from the financing which the credit institutions may have
been able to grant to INFOSEARCH for the acquisition of the shares
and, as the case may be, for the purposes of that provided for in
Articles Nine and Twelve.
Eight. Initially INFOSEARCH shall not have a right to hold any office on the
board of directors of T.I., while, taking into account the value and
know-how contributed by the partners in INFOSEARCH, the entry of a
representative of INFOSEARCH onto the board of directors shall be
considered upon the first renewal or expansion of the said board of
directors.
Nine. Infosearch indemnifies and holds T.I. harmless against any possible
legal or financial contingency which may derive from the equity
holdings of OLE in ADQ ADVERTISING, S.L., with Infosearch assuming
such costs as may derive from a negotiated settlement in order to
reach a resolution of the present relations existing between OLE and
ADQ or between any of them and Europa Press as a result of the
agreements contained in the articles of incorporation of ADQ.
In order that the mentioned costs may be as low as possible the
parties shall agree to and shall establish, by mutual agreement, in
advance, the strategy and actions to be undertaken within OLE and ADQ
with respect to the agreements contained in the articles of
incorporation of ADQ.
Without prejudice to that indicated above INFOSEARCH reserves the
right to eliminate such contingency, reaching such accord of
cancellation with EUROPA PRESS, in particular, as it may deem most
appropriate for its interests. In
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[three sets of script initials]
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such event T.I. shall endeavor to provide to INFOSEARCH the financing
necessary with the pledging of the shares referred to in Article One,
with a maturity of 60 days from the admission of the shares of T.I. to
listing on the securities exchanges.
Ten. The parties agree that the registered office of the company
ORDENAMIENTO DE LINKS ESPECIALIZADOS, S.L. shall be kept in Barcelona.
Eleven. Given that the only partners in INFOSEARCH are the natural or
artificial persons listed below, they may be subrogated to the
position of the company INFOSEARCH by the proportional part indicated,
in such case assuming all of the rights and obligations deriving from
this contract and therefore obtaining the status of partners in T.I.;
this is to be upon prior, written communication to the other
contracting parties.
Listing of persons and respective percentages:
Xx. Xxxxxxx Xxxx (1.5%)
Xx. Xxxxxx Xxxxxxx (19.7%)
FUNDACION INFANTIA (19.7%)
ODISEA HOLDING S.A. (or "PORTAL HOLDING S.A.") (companies in the
process of formation) (59.1%)
Twelve. INFOSEARCH undertakes to assume the cost of incorporating into T.I.
the clients of the present electronic mail service referred to as Ole
Mail.
The payment of the mentioned cost, which has been established at the
amount of US $180,000, is to be made by means of a loan for the
mentioned amount from T.I., which INFOSEARCH must repay within a term
of one year from the exit of T.I. to the financial markets.
Thirteen. A violation of the covenants contained in the present Agreement, as
well as a contravening of the acts or decisions adopted in the
performance of the covenants, shall constitute a serious breach of the
said Agreement and shall give rise to the pertinent compensation for
damages.
Fourteen. For the resolution of any dispute which may arise among the parties in
relation to the present contract and, in particular, as to its
interpretation, validity, execution, performance or termination, the
contracting parties submit themselves to the courts and tribunals of
the city of Madrid thus waiving their own venue, if any.
Fifteen. The present document shall be reduced to a public document upon the
request of any of the signatories set forth below made to the other
contracting parties.
Sixteen. The content and the progress of the activities deriving from this
Agreement shall be deemed to be within the strictest rules of
confidentiality by both parties. In the event that it may be so agreed
to among the parties, all publicity as to the content of this
agreement or as to its subsequent progress shall be jointly made by
both INFOSEARCH, T.I. and TELEFONICA.
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In witness of agreement on the content of the present agreement, and desiring to
bind themselves pursuant hereto, the participating parties, as respectively
represented, sign the present document in triplicate with the same force and
effect at the place and on the date mentioned above. s/
s/For TELEFONICA S.A. For TELEFONICA
INTERACTIVA For INFOSEARCH s/
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RECORD OF RATIFICATION OF CONTRACT FOR THE PURCHASE AND SALE OF SHARES
Before me, Xx. Xxxxx Xxx Xxxxxxxx, Securities and Currency Exchange Agent, in
public practice and service in the commercial region of MADRID, belonging to the
Association of Brokers and Trade of Madrid,
APPEARING
AS ONE PARTY: MR. XXXX XXXXX XXXXX DE BURUAGA, in the name of and representing
TELEFONICA INTERACTIVA, S.A., an entity domiciled in Madrid at Calle Gran Via 28
and with Taxpayer's Identification No. A/82196080. For the purposes hereof he
is exercising the powers conferred to him by the principal company by means of
the recorded document made before Xx. Xxxx Xxxxxxx Xxxxxxxx Ipiens, notary of
Madrid, on December 14, 1998, as number 5,399 in his official file;
AS THE OTHER PARTY: XX. XXXX XXXXXX XXXXXX, with Taxpayer's Identification No.
46.332.393-C, representing INFOSEARCH HOLDINGS, an entity with Luxembourg
nationality domiciled at 00 Xxx Xxxxxxxx - 0000 Xxxxxxxxxx. He is participating
by virtue of a specific power of attorney for making this document, conferred by
the Board of Directors of the company in a meeting held on April 14, 1999, with
apostille at The Hague dated April 23, 1999 and numbered 7,566.
Both of the parties mutually acknowledge the legal capacity necessary, and for
such purpose they
AGREE
That, by means of the present document, the company agreement relating to the
company ORDENAMIENTO DE LINKS ESPECIALIZADOS, S.L., with Taxpayer's
Identification B/61195830, signed on April 15, 1999 by TELEFONICA INTERACTIVA
S.A. and INFOSEARCH HOLDINGS, S.A. be converted into a public document, along
with Exhibit No. 1 ("agreements relating to the company OLE") signed on March
10, 1999 by the same parties.
This legal act amounts to the simple intent on the part of the participants to
confirm the document at issue by ratification for the purposes of Article 1,259
of the Civil Code without assuming a novation or any modification whatsoever of
that agreed to therein and without affecting its period of effectiveness and the
terms of performance of the obligations contained therein, which shall continue
to be governed by that stipulated in the original contract, a photocopy of which
is attached as an exhibit.
And I, the Securities and Currency Exchange Agent, upon making the
appropriate legal admonitions, as well as those of a tax nature and as to that
provided for Point No. 17 of Article 14 of the Amended Law on the Tax on
Documented Legal Acts and Transfers of Assets, do sign and seal, in Madrid, on
May 10, 1999.
TELEFONICA INTERACTIVA S.A. INFOSEARCH HOLDINGS, S.A.
(By authority:) (By authority:)
s/ s/
[various sets of script initials]
With my participation:
The Securities and Currency Exchange Agent
s/
[partially legible rubber-stamped seal, with coat of arms of Spain, of Xxxxxxxx,
Securities and Currency Exchange Agent, the Association of Commercial Brokers of
Madrid]
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In Madrid, on April 15 in the year nineteen hundred and ninety-nine.
AGREEMENT BETWEEN,
As one party, Mr. Xxxx Xxxxx Xxxxx de Buruaga, in the name of and representing
TELEFONICA INTERACTIVA, S.A. (hereinafter referred to as "T.I."), an entity
domiciled in Madrid at Calle Gran Via 28, with Taxpayers Identification No.
A-82/196080. For the purposes hereof he is exercising the powers conferred to
him by the principal company by means of the recorded document made before Xx.
Xxxx Xxxxxxx Xxxxxxxx Ipiens, notary of Madrid, on the fourteenth day of
December, 1998, as number 5,399 in his official file;
As the other party, Xx. Xxxx Xxxxxx Xxxxxx, with National Taxpayer's
Identification No. 46.332.393-C, who is acting in the name of and representing
INFOSEARCH HOLDINGS (hereinafter referred to as INFOSEARCH), domiciled in
Luxembourg. He has been specially empowered for the purposes hereof by virtue of
the power of attorney conferred to such effect on March 10, 1999 in Geneva by
the directors of INFOSEARCH, by means of a document the signatures of which have
been legalized pursuant to notarial protocol.
The parties in agreement, represented herein as set forth, reciprocally
acknowledge sufficient powers for the purposes hereof and they set forth the
following
PREMISES:
I. That, on March 10, 1999, the two parties to the present agreement signed
an Agreement relating to the transfer from INFOSEARCH to T.I. of the
entirety of the company shares representing the capital stock of the
entity ORDENAMIENTO DE LINKS ESPECIALIZADOS, S.L. (hereinafter referred to
as "OLE"). As Exhibit No. 1 to this contract, the mentioned Agreement is
attached in order to avoid useless repetition.
II. That, on today's date, the two parties have signed a purchase and sale
contract by means of which INFOSEARCH sells to T.I., which so purchases,
the entirety of the equity interests mentioned in the previous premise.
III. That, in furtherance of the remaining stipulations contained in the
mentioned Agreement of March 10, 1999, the parties
[various sets of script initials]
[partially legible rubber-stamped seal, extrapolated,
with coat of arms of Spain:]
Xxxxx Xxx Xxxxxxxx, Association of Commercial
Brokers of Madrid
s/
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STIPULATE
One. T.I., in its capacity as owner of the entirety of the shares representing
the capital stock of the company OLE, undertakes to carry out, within a term of
one month commencing from the date of the signing of the present document, an
increase in the capital stock of the company OLE by the amount of ONE BILLION
(1,000,000,000) Spanish pesetas, which is to be fully subscribed and paid in by
T.I. by means of the pecuniary contribution of the said amount.
In addition, T.I. undertakes to carry out, within a term of six months
commencing from the date of the signing of the present document, a second
increase in the capital stock, which is to be fully subscribed and paid in by
T.I. by means of a non-pecuniary contribution of the value of 2.000 billion
Spanish pesetas in assets, both tangible and intangible, which are to add value
to the base business of the company OLE.
Two. INFOSEARCH (or a third party identified for such purpose by INFOSEARCH,
provided that the controlling shareholders thereof are the same as those of
INFOSEARCH) undertakes that, once the increases in capital stock referred to
above are carried out, it shall purchase and T.I. shall sell company equity
interests representing 8% of the capital stock of the company OLE for the price
of FOUR HUNDRED MILLION (400,000,000) Spanish pesetas.
In the event that the said acquisition by the third party indicated above is
carried out, the latter shall assume the entirety of the rights and obligations
which this document allocates to INFOSEARCH, and under the same conditions.
Three. Upon formalizing the transfer referred to in Article Two, above, and upon
payment of the price therefor in full, INFOSEARCH and T.I. undertake that their
relations as partners in the company OLE shall adhere to that established in the
following:
I. Geographical Scope
The company OLE shall extend its activity to the entirety of the territory
of Spain, to Portugal and to such geographical areas of the
Spanish-Portuguese market as may be of mutual interest.
For such purpose the Partners shall draft a business development plan for
the Spanish-Portuguese markets.
In addition, the business area thereof shall be able to be extended to
other geographical zones which may be of interest to the Partners.
[various sets of script initials]
[partially legible rubber-stamped seal, extrapolated,
with coat of arms of Spain:]
Xxxxx Xxx Xxxxxxxx, Association of Commercial
Brokers of Madrid
s/
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2. Application of Funds and Development Plan
The Partners undertake to make a development plan and do an analysis of
the resources necessary for the execution of such plan as soon as
possible.
3. Composition of the Board of Directors
Taking into account the value and know-how contributed by the INFOSEARCH
Partners to the development of the business of OLE, the designation of the
members of the Board of Directors of the Company shall not be carried out
by means of the system of proportional representation established in the
statutory law on companies in force. The Board of Directors shall be
initially comprised of six directors, and it shall pertain to T.I. to
designate four directors and to INFOSEARCH to designate two directors.
4. Ordinary Management and Registered Office of the Company
The Management of OLE shall continue to be performed by the present
executive team, adding to such team those persons which T.I., by mutual
agreement between the parties, may deem to be appropriate.
5. Placement of the Company on the Securities Exchange
5.1 The parties set forth their express intent to establish as the
fundamental objective of their activity as OLE partners that of
ensuring the listing of the shares of this company on the securities
exchange at such time as the best price can be attained therefor,
making their best efforts in order that this may be carried out
prior to July in the year 2000.
T.I. undertakes to request and obtain the listing of the shares of
the company on the securities exchange by means of the issuance of a
public offering for the sale of such holding in the equity of OLE as
may constitute the legal minimum therefor, with INFOSEARCH
undertaking to include in such public offering such equity
interest as may proportionally pertain to it by reason of
the percentage of the equity which it owns.
This placement shall be carried out no later than July 31, 2001,
unless the two parties agree on another date in writing.
[various sets of script initials]
[partially legible rubber-stamped seal, extrapolated,
with coat of arms of Spain:]
Xxxxx Xxx Xxxxxxxx, Association of Commercial
Brokers of Madrid
s/
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INFOSEARCH shall have the right to increase the equity interest
which it includes in the placement up to reaching 100% of its equity
interest. In such case T.I. shall be able to opt between reducing
the percentage of the holding which it includes in the placement to
the same extent and having the mentioned placement increase
accordingly.
This undertaking on the part of T.I. is upon the condition that the
securities market conditions are favorable for carrying out the
mentioned placement. In the event of a disagreement between the two
parties as to the market conditions, an investment bank of renown
prestige shall be designated by mutual agreement and it shall decide
as to the mentioned market conditions. The decision of such
investment bank shall be binding upon the two parties.
In the event that T.I. fails to comply with the commitment indicated
above, INFOSEARCH shall have the right to purchase up to 51% of the
capital of OLE with a valuation of such capital at 5.000 billion
Spanish pesetas, plus the investments made commencing from today's
date.
5.2 As the majority shareholder in OLE, T.I. undertakes that the
resources necessary for the normal progress of the activities of the
Company up to the initial placement of the equity of OLE on the
market shall derive from the Company itself or from outside
indebtedness, including with a guaranty from T.I.
In the event that, due to legal and/or strategic requirements, it
becomes necessary to carry out any restructuring of the capital of
the company which entails contributions of capital from the
partners, T.I. grants to INFOSEARCH, if INFOSEARCH does not fully
cover the contribution which may pertain to it by virtue of its
equity interest, an option right to purchase the percentage of OLE
shares necessary in order that the equity interest of INFOSEARCH may
reach 8% of the total capital of the company.
INFOSEARCH shall be able to exercise the purchase option granted
herein at any time. If INFOSEARCH exercises the purchase option,
whether in part or in full, T.I. undertakes to sell to it such
shares as may pertain to the option thus exercised. The price of
sale shall be the par value of the mentioned shares and the payment
of the price shall be made within a term of sixty days commencing
from the exercise of the mentioned option.
The purchase option shall expire in three years commencing from the
date of the initial admittance of the equity of OLE to listing.
[various sets of script initials]
[partially legible rubber-stamped seal, extrapolated,
with coat of arms of Spain:]
Xxxxx Xxx Xxxxxxxx, Association of Commercial
Brokers of Madrid
s/
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6. Admission of New Partners
The parties shall be able to consider the admission of new partners in OLE
if the projection of the development plans thereof will be strategically
strengthened by their presence. In those cases where this takes place the
admission of other partners must always be availed of the mutual agreement
of the present partners and, in any event, in adherence to the terms
established in Clause 7, below.
7. Preemptive Right Prior to the Placement on Securities Exchange
In the event that INFOSEARCH or a company controlled by the shareholders
thereof desires to transfer all or part of its equity interest in OLE to a
company not controlled by the transferor T.I. shall be acknowledged to
have a preemptive right on such equity interests in the OLE company as may
be the subject matter of the transfer.
The abovementioned preemptive right shall be exercised in accordance with
the following terms and conditions:
1. The right may be exercised by T.I. within 60 days subsequent to the
date when it has formal knowledge that the factual eventuality
originating it has taken place. For such purpose INFOSEARCH
expressly assumes the duty to formally inform T.I., as soon as
possible, as to its intent to transfer all or part of its equity
interests in the company OLE.
2. The right shall be exercised with respect to the entirety of such
equity interests as are intended to be transferred.
3. The price for the equity interests, in the event that this right is
exercised, shall be the same price as that which the third party is
prepared to pay.
This preemptive right is entirely reciprocal and also applies to
INFOSEARCH in the event that T.I. intends to transfer its equity
interest in the company OLE.
8. Exemption from the Preemptive Right
Such right of preemption as the charter/bylaws of the Company may
recognize, as the case may be, shall not apply when the transfer of the
entirety or part of the OLE equity interests is carried out by T.I. to any
company in the Telefonica Group. The purchasing company from the
Telefonica Group fully assumes all of the rights and obligations of the
present contract.
[various sets of script initials]
s/
5
13
Such preemptive right as the charter/bylaws of the Company may recognize,
as the case may be, shall not apply when the transfer of the entirety or
part of the OLE equity interests is carried out by INFOSEARCH to any
company controlled by the controlling shareholders of INFOSEARCH. The
purchasing company related to INFOSEARCH fully assumes all of the rights
and obligations of the present contract.
9. Covenant not to Compete
INFOSEARCH and its directly or indirectly controlling shareholders
undertake and bind themselves not to directly or indirectly carry out
activities relating to the providing of the services which comprise the
company purpose of OLE and which constitute competition against it unless
the said company refrains from carrying out such activities itself.
With respect to its applicability, the mentioned covenant not to compete
is limited to the geographical scope where the company OLE may be carrying
out its activities at any given time.
A breach by INFOSEARCH or by its controlling shareholders of the present
covenant not to compete shall give rise to the entitlement, in favor of
T.I., to an option right to purchase such equity interests in the company
OLE as INFOSEARCH may own, which, in such case, it shall be required to
sell to T.I. if such purchase option is exercised by the latter. With
respect to the manner of exercise, the mentioned purchase option right
shall have terms identical to those set forth in Clause 5, above.
T.I. undertakes and binds itself not to directly or indirectly carry out
activities relating to providing services which comprise the company
purpose of OLE and which constitute competition against it unless the said
company refrains from carrying out such activities itself.
With respect to its applicability, the mentioned covenant not to compete
is limited to the geographical scope where the company OLE may be carrying
out its activities at any given time.
A breach by T.I. of the present covenant not to compete shall give rise to
the entitlement, in favor of INFOSEARCH, to an option right to purchase
such equity interests in the company OLE as T.I. may own, which, in such
case, it shall be required to sell to INFOSEARCH if such purchase option
is exercised by the latter. With respect to the manner of exercise, the
mentioned purchase option right shall have terms identical to those set
forth in Clause 5, above.
[various sets of script initials]
[partially legible rubber-stamped seal, extrapolated,
with coat of arms of Spain:]
Xxxxx Xxx Xxxxxxxx, Association of Commercial
Brokers of Madrid
s/
6
14
Four. A breach of covenants contained in the present Agreement, as well as a
contravening of the acts or decisions adopted in their performance, shall
constitute a serious breach of the said Agreement and shall give rise to the
pertinent compensation for damages.
Five. Any dispute which may arise between the parties with respect to the
present Contract and, in particular, as to its interpretation, validity,
execution, performance or termination, shall be submitted to legal arbitration
governed by the Law on Arbitration of December 5, 1998, and the parties
undertake to adhere to and abide by such award as may be issued in accordance
with the following rules: The arbitration shall be held before the CIMA in
accordance with the arbitration procedure established in the rules thereof, to
which the parties expressly subject themselves, and the dispute shall be decided
by one arbitrator designated in accordance with the charter of the said
institution.
Six. The content and the progress of the activities deriving from this Agreement
shall be deemed to be within the strictest rules of confidentiality by both
parties. In the event that it may be so agreed to between the parties, all
publicity as to the content of this Agreement or as to its subsequent progress
shall be carried out jointly by both INFOSEARCH and T.I.
Seven. The present Agreement shall enter into force commencing with its signing
and it shall remain in force until the dissolution or liquidation of OLE, or
until the complete departure of INFOSEARCH from its equity.
Any modification, amendment or supplement thereto must be effected in writing
and must be signed by both of the parties.
In witness of agreement on the content of the present Agreement, and
desiring to bind themselves pursuant hereto, the participating parties, as
respectively represented, sign the present document in duplicate with the same
force and effect at the place and on the date mentioned above. s/
s/For TELEFONICA INTERACTIVA
For INFOSEARCH
[various sets of script initials]
[partially legible rubber-stamped seal, extrapolated,
with coat of arms of Spain:]
Xxxxx Xxx Xxxxxxxx, Association of Commercial
Brokers of Madrid
s/
7
