-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q36vTD2uZSyrqyeRTabrvdUTqN/52M5lOpNayPsz3t34N4Wvsbf2qFwwq8YhFJ/W F2dPOKw0aODjXlaRAcrtyA== 0000883780-01-000013.txt : 20010228 0000883780-01-000013.hdr.sgml : 20010228 ACCESSION NUMBER: 0000883780-01-000013 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010227 GROUP MEMBERS: AMERICA ONLINE, INC. GROUP MEMBERS: AOL TIME WARNER INC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICA ONLINE LATIN AMERICA INC CENTRAL INDEX KEY: 0001100395 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 650963212 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-59485 FILM NUMBER: 1555953 BUSINESS ADDRESS: STREET 1: 6600 N ANDREWS AVE STREET 2: STE 500 CITY: FORT LAUDERDALE STATE: FL ZIP: 10013 BUSINESS PHONE: 9547720002 MAIL ADDRESS: STREET 1: 6600 N ANDREWS AVENUE STREET 2: SUITE 500 CITY: FORT LAUDERDALE STATE: FL ZIP: 10013 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AOL TIME WARNER INC CENTRAL INDEX KEY: 0001105705 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 134099534 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 75 ROCKEFELLER PLAZA CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2124848000 MAIL ADDRESS: STREET 1: 75 ROCKEFELLER PLAZA CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 0001.txt SCHEDULE 13D/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 2)* America Online Latin America, Inc. (Name of Issuer) Class A Common Stock, par value $0.01 per share (Title of Class of Securities) 02365B100 (CUSIP Number) Paul T. Cappuccio, Esq. Executive Vice President and General Counsel AOL Time Warner Inc. 75 Rockefeller Plaza New York, New York 10019 (212) 484-8000 Copy to: Jonathan L. Kravetz, Esq. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston Massachusetts 02111 (617) 542-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 13, 2001 (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) AOL Time Warner Inc. 13-4099534 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [_] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 122,399,584 NUMBER OF SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON 122,399,584 WITH 10 SHARED DISPOSITIVE POWER 240,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 122,639,584 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 67.6% 14 TYPE OF REPORTING PERSON* HC 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) America Online, Inc. 54-1322110 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [_] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 122,399,584 NUMBER OF SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON 122,399,584 WITH 10 SHARED DISPOSITIVE POWER 240,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 122,639,584 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 67.6% 14 TYPE OF REPORTING PERSON* CO AOL Time Warner Inc., a Delaware corporation ("AOL Time Warner"), and its wholly owned subsidiary, America Online, Inc., a Delaware corporation ("AOL") (collectively, the "Reporting Persons"), hereby file this Amendment No. 2 ("Amendment No. 2") to amend and supplement the Statement on Schedule 13D originally filed on August 22, 2000 and amended on January 22, 2001 (as amended, the "Statement"), with respect to the shares of Class A Common Stock, par value $0.01 per share (the "Class A Common Stock"), of America Online Latin America, Inc., a Delaware corporation ("AOL-LA"). Capitalized terms used but not defined in this Amendment No. 2 have the meanings assigned thereto in the Statement. The Statement is hereby amended and supplemented by this Amendment No. 2, as set forth below. Item 4. Purpose of Transaction The response to Item 4 of the Statement is hereby amended by replacing the last paragraph of Item 4 with the following paragraphs: As described in Item 6, AOL and certain other stockholders of the Issuer, Banco Itau, S.A, Itau Bank, Ltd. (together, "Itau"), and Aspen Investments LLC and Atlantis Investments LLC (together, "ODC"), have reached agreement in principle with the Issuer to possibly acquire additional equity securities from the Issuer. If such acquisition is consummated, such purchase by AOL would be for investment purposes. The Reporting Persons intend to review their investment in the Issuer on a continuing basis and reserve the right to acquire additional shares of Class A Common Stock, par value $0.01 per share (the "Shares"), in the open market or in privately negotiated transactions with the Issuer or third parties or otherwise, to maintain their holdings at current levels or to sell all or a portion of their holdings in the open market or in privately negotiated transactions or otherwise. Any such actions will depend upon, among other things: the availability of Shares for purchase, or the ability to sell Shares, at satisfactory price levels; the continuing evaluation of the Issuer's business, financial condition, operations and prospects; general market, economic and other conditions; the relative attractiveness of alternative business and investment opportunities; the availability of financing; the actions of the management, Board of Directors and controlling stockholders of the Issuer; and other future developments. As part of their ongoing review, the Reporting Persons may have additional discussions with third parties, including other stockholders, or with management of the Issuer regarding the foregoing. The information set forth or incorporated by reference in Items 6 and 7 is hereby incorporated by reference. Except as set forth elsewhere in this Schedule 13D, neither of AOL Time Warner nor AOL has any current plans or proposals which relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D, although AOL Time Warner and AOL do not rule out the possibility of effecting or seeking to effect any such actions in the future. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer The response to Item 6 of the Statement is hereby amended by adding the following paragraphs thereto: On February 13, 2001, the Issuer and each of AOL, ODC, and Itau (collectively, the "Stockholders") entered into a letter agreement in principle (the "Letter Agreement in Principle") pursuant to which the Issuer and the Stockholders agreed in principle that the Stockholders would acquire additional equity securities of the Issuer, which, in the case of AOL, would consist of shares of the Issuer's Series D Preferred Stock (the "Series D Shares") having an aggregate value of approximately $66 million based on the average trading price of the Shares at such time in the future as such securities are purchased. There can be no assurance that such negotiations will result in the execution of definitive agreements or any acquisition of Series D Shares; the Letter Agreement in Principle terminates if definitive agreements are not executed by April 15, 2001. The Series D Shares will be issued as part of a new class of the Issuer's securities created in connection with this transaction, and as such will require a certificate of designation to create the new class. Any such purchase of Series D Shares is subject to the following conditions: the Issuer and the Stockholders reaching mutual agreement on the terms and conditions of, and executing and delivering, definitive agreements; approval of any such transaction by the Board of Directors of the Issuer (the "AOLA Board"), which will require a favorable recommendation from a special committee of the AOLA Board; the receipt by such special committee of a fairness opinion from an investment bank to be retained by the committee; and any necessary regulatory approvals. The foregoing summary of certain provisions of the Letter Agreement in Principle is not intended to be complete and is qualified in its entirety by the complete text of such document, which is included as Exhibit 8 to this Amendment No. 2 and is incorporated herein by reference. The statement of beneficial ownership of shares does not include any securities that may be acquired in this possible transaction because of the material contingencies to the consummation thereof, some of which are beyond any of the Reporting Persons' control, and because the pricing for any such acquisition has not been determined. The filing of this amendment to Schedule 13D shall not be construed as an admission for the purposes of Section 13(d) and 13(g) and Regulation 13D-G of the Exchange Act or the rules promulgated thereunder that any of the Reporting Persons is the beneficial owner of any securities of the Issuer pursuant to the Letter Agreement in Principle. The information set forth or incorporated by reference in Items 4 and 7 is hereby incorporated by reference. Item 7. Material to be Filed as Exhibits Item 7 is hereby amended by adding the following document as an exhibit: Exhibit Number Description 8 Letter Agreement in Principle, dated as of February 13, 2001, by and among America Online Latin America, Inc. and America Online, Inc., Aspen Investments LLC, Atlantis Investments LLC, Banco Itau, S.A. Cayman Branch and Itau Bank Limited (the "Letter Agreement in Principle"). SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. AOL TIME WARNER INC. Date: February 27, 2001 By: /s/ J. Michael Kelly Name: J. Michael Kelly Title: Executive Vice President and Chief Financial Officer AMERICA ONLINE, INC. Date: February 27, 2001 By: /s/ Joseph A. Ripp Name: Joseph A. Ripp Title: Executive Vice President, Chief Financial Officer and Treasurer EX-8 2 0002.txt LETTER AGREEMENT IN PRINCIPLE Exhibit 8 Letter Agreement in Principle, dated as of February 13, 2001, by and among America Online Latin America, Inc. and America Online, Inc., Aspen Investments LLC, Atlantis Investments LLC, Banco Itau, S.A. Cayman Branch and Itau Bank Limited. February 13, 2001 America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323 Aspen Investments LLC Atlantis Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Banco Itau, S.A.-Cayman Branch Itau Bank Limited Rua Boa Vista 176 Sao Paulo, Brazil Ladies and Gentlemen: This letter is intended to confirm the agreement by and among America Online Latin America, Inc. ("AOLA") and each of America Online, Inc. ("AOL"), Aspen Investments LLC and Atlantis Investments LLC (collectively, "ODC") and Banco Itau, S.A.-Cayman Branch and Itau Bank Limited (collectively, "Banco Itau," and together with AOL and ODC, the "Purchasers") regarding the proposed sale of equity securities of AOLA to each of AOL, ODC and Banco Itau. Each of the Purchasers agrees to contribute to the capital of AOLA the amounts set forth opposite its respective name on the term sheet attached hereto as Exhibit A and agrees to the other terms set forth therein. Counsel for AOLA will prepare the definitive draft documents necessary to implement this agreement, including without limitation (the "Definitive Documents"): o purchase agreement(s), o a certificate of designation for the Series D Preferred Stock and, if necessary, an amendment to AOLA's Certificate of Incorporation, o amendments to the Stockholders' Agreement and Registration Rights Agreement among AOLA, AOL and ODC, and o an amendment to the existing Registration Rights and Stockholders' Agreement between AOLA and Banco Itau (pursuant to such amendment, among other things, Banco Itau will have the right to effect repurchase transactions at its sole discretion with respect to all or any part of the securities to be purchased hereunder on the terms and conditions to be agreed to in the Definitive Documents). Each of the parties acknowledges and agrees that it will proceed in good faith in negotiating the Definitive Documents, which may include refinements and clarifications of the terms and conditions set forth on Exhibit A, as well as additional terms that, although not specified herein, are customary in equity investments of this type and consistent with the existing documents evidencing the Purchasers' current investments in AOLA; provided, that if the Definitive Documents are not executed on or prior to April 15, 2001, this letter agreement shall terminate; provided, further, that such termination shall not relieve any party from liability for any obligation it may have failed to perform prior to such termination. The signing of the definitive agreements will be conditioned on the Board of Directors of AOLA having approved this transaction (which will require, at a minimum, that the Board receive a favorable recommendation to the Board of Directors by a special committee of the Board constituted to advise the Board on this transaction (which committee will seek a "fairness opinion" from an investment bank to be retained by that committee)). The equity securities will be issued by AOLA to the Purchasers pursuant to Regulations D and S promulgated under the Securities Act of 1933, as amended. AOLA shall reimburse each Purchaser in an amount not to exceed US$25,000 per Purchaser for legal fees and other out-of-pocket expenses incurred by such Purchaser in connection with the negotiation and execution of this letter and the transactions described herein, whether or not the transactions described herein are completed. Except as set forth in the preceding sentence, all parties shall be responsible for their own costs and expenses. This agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware and may be modified only pursuant to a writing signed by all of the parties hereto. If you determine that the foregoing is satisfactory in principle, we would appreciate acknowledgment of that determination by the execution and delivery to us of the enclosed copy of this letter. Very truly yours, America Online Latin America, Inc. By: /s/ Charles M. Herington Charles M. Herington President and Chief Executive Officer The foregoing is agreed to and accepted. America Online, Inc. By: /s/ Gerald R. Sokol, Jr. Gerald R. Sokol, Jr. Senior Vice President Dated, February 13, 2001 Aspen Investments LLC By: /s/ Cristina Pieretti /s/ Jean Barton Jenn Cristina Pieretti Jean Barton Jenn Executive Vice President Secretary Dated, February 13, 2001 Atlantis Investments LLC By:/s/ Cristina Pieretti /s/ Jean Barton Jenn Cristina Pieretti Jean Barton Jenn Executive Vice President Secretary Dated, February 13, 2001 Banco Itau, S.A.-Cayman Branch By: /s/ Roberto Egydio Setubal Roberto Egydio Setubal President Dated, February 13, 2001 Itau Bank Limited By: /s/ Roberto Egydio Setubal Roberto Egydio Setubal President Dated, February 13, 2001 Exhibit A Term Sheet America Online Latin America, Inc. Capital Contribution and Subscription for New Shares Issuer . . . . . . . . . America Online Latin America, Inc. (the "Company"), a Delaware corporation. Purchasers . . . . . . . A. America Online, Inc. ("AOL"), a Delaware corporation. B. Banco Itau, S.A.-Cayman Branch and Itau Bank Limited (collectively "Itau"). C. Aspen Investments LLC, and Atlantis Investments LLC, each a Delaware limited liability company (collectively "ODC"). Capital Contributions . . A. AOL: US$ 66,338,075; B. Itau: US$ 19,864,875; C. ODC: US$ 63,797,050. Securities . . . . . . . A. AOL: Series D Preferred Stock (each share of which will be convertible into one share of "High Vote Common Stock" (as defined in AOLA's current Certificate of Incorporation))with a liquidation preference equal to the amount of AOL's Capital Contributions hereunder, ranking senior (in liquidation, but not with respect to dividends) to other classes of the Company's Preferred Stock, with voting rights equal to those of the Company's other Preferred Stock and with a dividend rate equal to 3% of the per share liquidation preference (on terms consistent with, and pari passu with, the Company's other Preferred Stock); B. Itau: Class A Common Stock; C. ODC: Series C Preferred Stock. Purchase Price . . . . . For each share of each of the above classes of stock, the average of the closing price of the Class A Common Stock quoted on the Nasdaq National Market System as published in the Wall Street Journal for a certain number of trading days prior to the initial funding date as may be agreed to by the parties and specified in the Definitive Documents. Target Closing Date . . . March 8, 2001 Payment Schedules . . . . Capital will be contributed in an aggregate amount of $150 million on the following dates: (i) April 1, 2001, (ii) June 1, 2001 and (iii)August 1, 2001. The amount to be contributed on each funding date will be set forth in the Definitive Documents and will be based on the projected cash needs of AOLA (plus an agreed upon "cushion") as demonstrated by a business plan to be finalized prior to the execution of the Definitive Documents; provided, that the Definitive Documents will provide that notwithstanding the definitive amounts established for each funding date, the Purchasers shall fund such additional amounts as may be needed by AOLA (subject to the aggregate limit of $150 million). On each funding date, (a) AOL, Itau and ODC will each make a capital contribution in an amount equal to their respective pro rata portions of the aggregate amount required to be contributed on such funding date, and (b) in exchange therefor the Company will issue to each such entity the applicable number of shares of the Company's capital stock. Definitive Agreements . Purchase Agreement among the Company and the Purchasers, amendment to the Stockholders Agreement and the Registration Rights Agreement among the Company, AOL and ODC (to make the newly issued securities subject to that agreement) and amendment to the Registration Rights and Stockholders Agreement between the Company and Itau (to make the newly issued securities subject to that agreement as "Unrestricted Shares", other than Section 10.1(a) and 10.1(b)(i); provided, that the documents will provide that (A) all public sales of the securities will be subject to Section 10.1(e)(ii) and (B) all private sales of the securities will be subject to Section 10.1(e)(iii) and a right of first refusal in favor of AOLA, AOL and ODC). Confidentiality . . . . . The terms of this Term Sheet, the Parties' discussions and their subject matter are confidential and shall be disclosed only to the Parties' employees and outside advisors who have a need to know such confidential information, except as required by law or with the prior written consent of all the Parties hereto. -----END PRIVACY-ENHANCED MESSAGE-----