-----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, IGLAESI5L5Q4F5c3XBnWMs1HXFR0IutYLU2axdue5PUJrXSHEYKITAgmwY+gq2DW 6YXYLT3bqwT9+ApaRN7XLA== 0000883780-01-000015.txt : 20010416 0000883780-01-000015.hdr.sgml : 20010416 ACCESSION NUMBER: 0000883780-01-000015 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20010413 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: 1602255 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 13 D / AMENDMENTS 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. 3) 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) March 30, 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 N/A ________________________________________________________________________________ 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 0 NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 136,551,706 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER 0 REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 136,791,706 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 136,791,706 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 68.4% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON* HC, CO ________________________________________________________________________________ 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 W/C ________________________________________________________________________________ 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 0 NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 136,551,706 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER 0 REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 136,791,706 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 136,791,706 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 68.4% ________________________________________________________________________________ 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. 3 ("Amendment No. 3") to amend and restate in its entirety the statement on Schedule 13D originally filed on August 22, 2000 and amended on January 22, 2001 and February 27, 2001 (as so 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"). As provided in the Joint Filing Agreement filed as Exhibit No. 7 hereto, the Reporting Persons have agreed pursuant to Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to file one statement on Schedule 13D with respect to their beneficial ownership of the Class A Common Stock. Item 1. Security and Issuer This Statement relates to the Class A Common Stock of AOL-LA. The address of the principal executive office of AOL-LA is 6600 N. Andrews Avenue, Suite 500, Fort Lauderdale, Florida 33309. Item 2. Identity and Background This Statement is being filed by AOL Time Warner, having its principal executive offices at 75 Rockefeller Plaza, New York, New York 10019, and AOL, having its principal executive offices at 22000 AOL Way, Dulles, Virginia 20166, and by AOL Time Warner and AOL as members of a "group" (as such term is defined pursuant to Regulation 13D under the Exchange Act), which has been deemed to have been formed by (i) the Reporting Persons and (ii) Gustavo A. Cisneros, Ricardo J. Cisneros, Aspen Investments LLC, a Delaware limited liability company ("Aspen"), and Atlantis Investments LLC, a Delaware limited liability company ("Atlantis" and, together with Aspen, "ODC") (collectively, the "Cisneros Group"), by virtue of the agreements among the Reporting Persons and the Cisneros Group described elsewhere in this Statement. Until December 28, 2000, the Cisneros Group included Riverview Media Corp., a British Virgin Islands corporation ("Riverview"); on that date Riverview assigned to each of Aspen and Atlantis, on an equal basis, all of its right, title and interest in and to the shares of Class A Common Stock beneficially owned by Riverview. Riverview is still the record owner of such shares. In addition, a "group" may be deemed to have been formed by the Reporting Persons, the Cisneros Group, and Banco Itau S.A., a Brazilian Sociedade Anonima ("Banco Itau"), Banco Itau's affiliate, Banco Banerj S.A., a Brazilian Sociedade Anonima ("Banco Banerj"), Banco Itau, S.A.-Cayman Branch, a Brazilian Sociedade Anonima ("Banco Itau-Cayman"), Itau Bank Limited, a Cayman limited liability company, and Roberto Egydio Setubal, President and Chief Executive Officer of Banco Itau (collectively, the "Banco Itau Reporting Persons"), by virtue of the agreements among the Reporting Persons, the Cisneros Group and the Banco Itau Reporting Persons described elsewhere in this Statement. The addresses of the Cisneros Group and the Banco Itau Reporting Persons are set forth in Schedule I to this Statement. The Reporting Persons disclaim beneficial ownership of any AOL-LA securities owned directly or indirectly by the Cisneros Group and the Banco Itau Reporting Persons. AOL Time Warner is the first internet powered media and communications company. Its business interests include: interactive services, cable systems, publishing, music, cable and broadcast television networks and filmed entertainment. Substantially all of AOL Time Warner's interests in filmed entertainment, most of its interests in cable systems and a portion of its interests in cable networks are held through Time Warner Entertainment Company, L.P., a Delaware limited partnership in which AOL Time Warner has a majority interest. AOL is a direct wholly owned subsidiary of AOL Time Warner. AOL is the world's leader in branded interactive services and content. To the best knowledge of the Reporting Persons as of the date hereof, the name, business address, present principal occupation or employment and citizenship of each executive officer and director of each Reporting Person, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Schedules II and III hereto. The information contained in Schedules II and III is incorporated herein by reference. During the last five years, none of the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of their executive officers or directors listed in Schedules II and III hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws. Except as provided in Item 6 of this Statement, to the best knowledge of the Reporting Persons, no directors or officers of the Reporting Persons have legal or beneficial ownership of any shares of Class A Common Stock. Item 3. Source and Amount of Funds or Other Consideration Prior to August 7, 2000, the effective date of AOL-LA's initial public offering of its Class A Common Stock (the "Offering"), the business of AOL-LA was conducted by affiliates of AOL Latin America, S.L. AOL Latin America, S.L. is a limited liability company that was organized in Spain in December 1998. AOL Latin America, S.L. was formed by AOL and the Cisneros Group, as a joint venture in which: (i) AOL contributed royalty free license rights and other rights and services in exchange for its ownership interest (such contribution was recorded at AOL's historical cost basis, which was zero); and (ii) the Cisneros Group contributed an aggregate amount of approximately $100.1 million in exchange for its ownership interest. In addition, AOL and the Cisneros Group each contributed $32.5 million to AOL Latin America, S.L. through July 2000, and each paid AOL-LA an additional $17.5 million before December 31, 2000. Immediately before the effectiveness of the Offering, AOL-LA became the holding company of, and indirectly acquired all of, AOL Latin America, S.L. and its affiliates through a corporate reorganization (the "Reorganization"). Pursuant to the Reorganization, (i) AOL and the Cisneros Group exchanged their ownership interests in the two holding companies that owned AOL Latin America, S.L. and its affiliates for 101,858,334 shares of AOL-LA's Series B Redeemable Convertible Preferred Stock, par value $0.01 per share ("Series B Preferred Stock"), and 99,861,910 shares of Series C Redeemable Convertible Preferred Stock, par value $0.01 per share ("Series C Preferred Stock"), respectively; and (ii) AOL-LA issued a warrant to AOL (the "AOL Warrant") to purchase 16,541,250 shares of AOL-LA stock in any combination of Series B Preferred Stock, Class A Common Stock or Class B Common Stock, par value $0.01 per share ("Class B Common Stock"), at a per share exercise price equal to the Offering price of $8.00. AOL did not pay any additional consideration to AOL-LA upon the issuance and delivery of the AOL Warrant to AOL. In addition, on August 11, 2000, each of AOL and the Cisneros Group purchased 4,000,000 shares of Class A Common Stock in the Offering at the $8.00 Offering price. AOL purchased its shares using funds from its working capital. On January 11, 2001, pursuant to the Second Amended and Restated Agreement and Plan of Merger, dated as of January 10, 2000, by and among AOL Time Warner, AOL, America Online Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of AOL Time Warner ("America Online Merger Sub"), Time Warner and Time Warner Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of AOL Time Warner, America Online Merger Sub merged with and into AOL with AOL continuing as the surviving corporation and becoming a direct wholly owned subsidiary of AOL Time Warner, and Time Warner Merger Sub merged with and into Time Warner with Time Warner continuing as the surviving corporation and becoming a direct wholly owned subsidiary of AOL Time Warner (together, the "Mergers"). In addition, upon consummation of the Mergers (i) each outstanding share of AOL Common Stock was automatically converted into one share of AOL Time Warner Common Stock, (ii) each outstanding share of Time Warner Common Stock was automatically converted into 1.5 shares of AOL Time Warner Common Stock, and (iii) each outstanding share of Time Warner Series LMCN-V Common Stock was automatically converted into 1.5 shares of AOL Time Warner Series LMCN-V Common Stock having terms substantially identical to those of the Time Warner Series LMCN-V Common Stock. As a result of the Mergers, AOL Time Warner became the ultimate beneficial owner of the securities of AOL-LA held by AOL. Currently, no shares of AOL-LA's Class B Common Stock or shares of AOL-LA's Class C Common Stock, $0.01 par value per share (the "Class C Common Stock"), are outstanding. For the purposes hereof, the term "B Stock" refers collectively to Series B Preferred Stock and Class B Common Stock, and the term "C Stock" refers collectively to Series C Preferred Stock and Class C Common Stock. The shares of Series D Redeemable Convertible Preferred Stock, $0.01 par value per share (the "Series D Preferred Stock"), purchased by AOL pursuant to the Stock Purchase Agreement described in Items 4 and 6 hereof were purchased using funds from AOL's working capital. Item 4. Purpose of Transaction The information set forth or incorporated by reference in Items 2, 3, 5, 6 and 7 is hereby incorporated by reference. AOL's purchase, on August 11, 2000, of 4,000,000 shares of Class A Common Stock in the Offering was part of a broader investment history with AOL-LA that included the Reorganization. As one of the founders of AOL-LA, AOL, along with the Cisneros Group, exercises its control over AOL-LA through several instruments and agreements, including (i) an Amended and Restated Stockholders' Agreement, dated as of March 30, 2001, among AOL, ODC and AOL-LA (the "Stockholders' Agreement"); (ii) an Amended and Restated Registration Rights and Stockholders' Agreement (the "Banco Itau Registration Rights Agreement"), dated as of March 30, 2001, among AOL-LA, Banco Itau, Banco Banerj, Banco Itau-Cayman, Itau Bank Limited, and, for limited purposes, AOL and ODC; (iii) AOL-LA's Restated Certificate of Incorporation, as amended from time to time (the "Charter"); and (iv) AOL-LA's Restated By-laws (the "By-laws"). In addition, AOL has entered into various agreements relating to the equity securities issued by AOL-LA, including a Stock Purchase Agreement (as described below in this Item 4), a Voting Agreement (as described below in this Item 4), and the AOL-ODC Registration Rights Agreement (as described in Item 6 of this Statement). The Stockholders' Agreement contains various provisions that affect the way AOL-LA operates its business and governs many important aspects of the relationships among AOL, AOL-LA and the Cisneros Group. Pursuant to the Stockholders' Agreement, AOL and ODC agreed to vote all of their shares of AOL-LA capital stock to elect the four directors nominated by the Special Committee (as defined below in this Item 4) for election by the holders of all shares of AOL-LA's outstanding capital stock, voting together. In addition, under the Banco Itau Registration Rights Agreement, AOL and ODC agreed to vote their shares of AOL-LA capital stock in favor of an individual nominated by Banco Itau to serve as one of the above-mentioned four directors. The Stockholders' Agreement also states that AOL and ODC may admit one or more additional principal stockholders to AOL-LA. Any such additional stockholder would either receive new shares of AOL-LA capital stock or would acquire shares owned by AOL or ODC. If such new stockholder is a Strategic Partner (as such term is defined in the Stockholders' Agreement, a copy of which is included as Exhibit 1 to this Schedule 13D), ODC's ownership interest in AOL-LA will be reduced at a disproportionately greater rate than AOL's ownership interest in AOL-LA. To achieve the reduction, for example, either AOL-LA or AOL could purchase shares held by the Cisneros Group at their then fair market value. Pursuant to the Charter, holders of Class A Common Stock are each entitled to one vote per share, while holders of B Stock and C Stock are each entitled to ten votes per share and have been granted the exclusive right to vote on a number of significant provisions of the Charter and the By-laws. The actions set forth below require a majority vote of B Stock and C Stock, each voting separately as a class. (a) amending or repealing the provisions of the Charter relating to (i) the expansion of AOL-LA's business beyond PC-, TV- or wireless-based services, (ii) the extent to which AOL-LA's stockholders, including AOL and the Cisneros Group, may compete with AOL-LA for business, (iii) access to corporate opportunities that may be taken by AOL and the Cisneros Group, (iv) the limitation of AOL's and the Cisneros Group's liability to AOL-LA if AOL and the Cisneros Group appropriate AOL-LA's corporate opportunities, (v) AOL-LA's indemnification of AOL and the Cisneros Group, as well as any of their officers, directors, agents, stockholders, members, partners, affiliates or subsidiaries, if they incur damages for lawsuits based on claims that they breached their fiduciary duty to AOL-LA by appropriating AOL-LA's corporate opportunities, (vi) the terms of AOL-LA's authorized capital stock, including voting, dividend and conversion rights, (vii) the election and removal of AOL-LA's directors, (viii) the Special Committee, and (ix) the initiation of litigation that is adverse to either AOL or the Cisneros Group; (b) amending the provisions of the By-laws, as they relate to AOL-LA's Board of Directors (the "Board") and its committees and the indemnification of AOL-LA's officers and directors; and (c) unless otherwise required under Delaware law or waived by holders of a majority of the outstanding shares of B Stock or C Stock, approving (i) mergers and acquisitions, (ii) any issuance of, or change in, any of AOL-LA's capital stock, (iii) the transfer of any of AOL-LA's material assets, (iv) the establishment of any subsidiary or any material change in a subsidiary's business, (v) the adoption and modification of business plans, (vi) AOL-LA's establishment or amendment of any significant investment or cash management policy, (vii) AOL-LA's discontinuance of any material business activity, (viii) AOL-LA's entering into any partnership, joint venture or consortium, (ix) AOL-LA's entering into agreements outside the ordinary course of its business, and (x) AOL-LA's filing for bankruptcy or its decision not to prevent or oppose an involuntary filing for bankruptcy. For as long as any shares of B Stock or C Stock remain outstanding, the holders of Class A Common Stock and the Board will have no voting rights on the matters set forth in item (a) or (b) above, unless required under Delaware law. The voting rights for the election of the 14 members of the Board are as follows: (a) the holders of B Stock are entitled to elect five directors (each a "Class B Director"), (b) the holders of C Stock are entitled to elect five directors (each a "Class C Director"), and (c) the holders of all shares of AOL-LA's outstanding capital stock, voting together as a single class, are entitled to elect the remaining four directors (each a "Class A Director"). Banco Itau is entitled to nominate one of these four Class A Directors. Pursuant to the Charter, AOL-LA established a two-member committee of the Board consisting of one Class B Director and one Class C Director (the "Special Committee"). The Special Committee will evaluate corporate actions such as: (a) amendments to the Charter and By-laws; (b) amendments to the Stockholders' Agreement; (c) mergers and acquisitions; (d) any issuance of, or change in, any capital stock of AOL-LA; (e) the transfer of any material assets of AOL-LA; (f) loans by AOL-LA in excess of $50,000; (g) capital expenditures in excess of $50,000; (h) borrowings by AOL-LA in excess of $50,000; (i) the declaration of any dividends on securities of AOL-LA; (j) the selection of nominees to be recommended by the Board for election by all outstanding shares of AOL-LA capital stock voting together; (k) the admission of additional Strategic Partners; (l) the launch by AOL-LA of AOL-branded TV- and wireless-based online services in Latin America, as well as any agreements between AOL-LA and third parties that relate to these launches; (m) the adoption and modification of business plans; (n) the appointment or dismissal of AOL-LA's independent auditors; (o) the establishment of any subsidiary or any material change in a subsidiary's business; (p) litigation by AOL-LA that involves amounts in excess of $100,000 or that is adverse to either AOL or the Cisneros Group; (q) AOL-LA's establishment of, or any significant modification to, any significant investment or cash management policies; (r) AOL-LA's discontinuance of any material business activity; (s) AOL-LA's entering any partnership, joint venture or consortium; (t) AOL-LA's issuance of press releases containing material non-public information; (u) AOL-LA's entering into agreements outside of the ordinary course of its business; (v) the approval of the final annual audited consolidated financial statements of any subsidiary; (w) AOL-LA's filing for bankruptcy or its decision not to prevent or oppose any involuntary filing for bankruptcy; (x) adoption or material amendment to any employee benefit or executive compensation plan or severance payment; and (y) hiring or firing any personnel with an annual salary in excess of $100,000 or increasing their compensation above $100,000. Each of these actions requires the unanimous approval of the Special Committee before being submitted for approval by the Board. Because of their role in choosing the members of the Special Committee, both AOL and the Cisneros Group effectively have the power to veto these corporate actions. If either AOL or the Cisneros Group loses its right to representation on the Special Committee, the Special Committee will be dissolved. If the Special Committee is dissolved, the approval of the Board as a whole will be required to approve any corporate actions previously evaluated by the Special Committee. In addition, any amendment to the Charter, other than those over which the holders of B Stock and C Stock have exclusive voting rights, must be approved by the affirmative vote of 75% of the voting power of AOL-LA's outstanding capital stock. Amendments that would adversely alter or change the powers, preferences or special rights of any class or series of AOL-LA's capital stock must also be approved by the affirmative vote of the holders of a majority of the outstanding shares of B Stock and C Stock, each voting separately as a class. Further, the By-laws may be amended by a majority vote of the Board, subject to the prior approval of the Special Committee. Unless the holders of B Stock or C Stock have exclusive rights to vote on the amendment, the By-laws may also be amended after obtaining the following: (i) the affirmative vote of a majority of the voting power of all of AOL-LA's capital stock, voting as a single class, (ii) the affirmative vote of a majority of the B stock voting together as a single class, but only if a Class B Director is entitled to be a member of the Special Committee, and (iii) the affirmative vote of a majority of the C Stock, voting together as a single class, but only if a Class C Director is entitled to be a member of the Special Committee. As described in Item 6, AOL, ODC and Banco Itau-Cayman have entered into a Stock Purchase Agreement dated as of March 30, 2001 (the "Stock Purchase Agreement"), pursuant to which AOL has purchased 4,717,374 shares of Series D Preferred Stock, each of Aspen and Atlantis has purchased 2,268,339 shares of Series E Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series E Preferred Stock"), and Banco Itau-Cayman has purchased 4,237,840 additional shares of Class A Common Stock, each at a price of $4.6875 per share. The shares of Series D Preferred Stock and Series E Preferred Stock purchased by AOL and ODC, respectively, are immediately convertible into an equivalent number of shares of AOL-LA's Class B and Class C Common Stock, respectively, which in turn are immediately convertible into an equivalent number of shares of AOL-LA's Class A Common Stock. Holders of Series D Preferred Stock and Series E Preferred Stock are entitled to one vote per share. Pursuant to the terms of the Stock Purchase Agreement, AOL has also agreed to purchase an aggregate of an additional 9,434,748 shares of Series D Preferred Stock, and each of Aspen and Atlantis has agreed to purchase an aggregate of an additional 4,536,678 shares of Series E Preferred Stock. Such purchases shall occur at closings to take place on June 1, 2001 and August 1, 2001. The exact numbers of shares to be purchased at such additional closings may be adjusted by notice from AOL-LA to each of AOL and ODC, although in no event will the aggregate numbers of shares to be purchased at such closings by AOL and ODC be less than 9,434,748 shares and 9,073,356 shares, respectively. AOL-LA filed a certificate of designation to create the Series D Preferred Stock and the Series E Preferred Stock, as authorized in the Charter (the "Certificate of Designation"). In connection with the Stock Purchase Agreement, AOL, ODC, AOL-LA and Riverview entered into a Voting Agreement, dated as of March 30, 2001 (the "Voting Agreement"), pursuant to which AOL, Riverview and ODC agreed to vote all shares of AOL-LA's capital stock owned by them in favor of certain proposals to be presented at a meeting of the holders of AOL-LA's Class A Common Stock (the "Class A Holders"), including a proposal to amend the liquidation preference of the Series B Preferred Stock and Series C Preferred Stock. Upon approval of these proposals by the Class A Holders, the shares of Series D Preferred Stock and Series E Preferred Stock purchased by AOL and ODC, respectively, pursuant to the Stock Purchase Agreement will automatically convert into shares of Series B Preferred Stock and Series C Preferred Stock, respectively (the "Conversion"). Under the Voting Agreement, AOL and ODC also agreed to vote in favor of any additional actions necessary to permit the Conversion to occur and to authorize the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of those shares) to be authorized for quotation or listing on the Nasdaq Stock Market. The Reporting Persons intend to review their investment in AOL-LA on a continuing basis and, subject to the limitations set forth in the Stockholders' Agreement, reserve the right to acquire additional securities of AOL-LA, in the open market or in privately negotiated transactions with AOL-LA 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 such securities for purchase, or the ability to sell such securities, at satisfactory price levels; the continuing evaluation of AOL-LA'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 and controlling stockholders of AOL-LA; 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 AOL-LA regarding the foregoing. 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 requiring disclosure pursuant to 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. References to, and descriptions of, the Stockholders' Agreement, the Banco Itau Registration Rights Agreement, the Stock Purchase Agreement, the Certificate of Designation, the Voting Agreement and the AOL-LA Charter and By-laws as set forth above or incorporated in this Item 4 are qualified in their entirety by reference to the copies of such documents included as exhibits to this Schedule 13D, and are incorporated in this Item 4 in its entirety where such references and descriptions appear. Item 5. Interest in Securities of the Issuer The information set forth or incorporated by reference in Items 2, 3, 4, 6 and 7 is hereby incorporated herein by reference. As of the date hereof, the Reporting Persons beneficially own (i) 4,000,000 shares of Class A Common Stock that AOL purchased in the Offering on August 11, 2000, (ii) 101,858,334 shares of Series B Preferred Stock that AOL received in the Reorganization, which Series B Preferred Stock represents all of the Series B Preferred Stock issued and outstanding, and (iii) 4,717,374 shares of Series D Preferred Stock, which Series D Preferred Stock represents all of the Series D Preferred Stock issued and outstanding. In addition, pursuant to the rules of the Securities and Exchange Commission, the Reporting Persons may be deemed to beneficially own an additional 9,434,748 shares of Series D Preferred Stock that AOL is obligated to purchase under the terms of the Stock Purchase Agreement at the closings on June 1 and August 1, 2001. Shares of Series B Preferred Stock and Series D Preferred Stock are convertible into shares of Class B Common Stock at any time, initially on a one share-for-one share basis, and such Class B Common Stock is convertible into Class A Common Stock at any time, initially on a one share-for-one share basis. In addition, immediately prior to the Securities and Exchange Commission's declaring the Offering effective, AOL-LA issued the AOL Warrant to AOL. The number of shares for which the AOL Warrant is exercisable is 16,541,250, in any combination of B Stock or Class A Common Stock, at a per share exercise price equal to the Offering price of $8.00. The AOL Warrant is immediately exercisable and has a ten-year term. The number of shares issuable under the AOL Warrant may be increased if AOL-LA, AOL or the Cisneros Group issue or transfer shares to one or more Strategic Partners. Pursuant to Rule 13d-3(a) promulgated under the Exchange Act, the Reporting Persons may be deemed to beneficially own options to purchase an aggregate of 240,000 shares of Class A Common Stock. As stated in Item 6 below, upon the consummation of the Offering, Michael Lynton and Gerald Sokol, Jr., both employees of AOL, and J. Michael Kelly and Robert W. Pittman, both now employees of AOL Time Warner and former employees of AOL, who are each also members of the Board (the "Employees") were each granted an option to purchase 60,000 shares of Class A Common Stock. Under the Reporting Persons' conflicts of interest standards, each such Employee must transfer the economic benefit of his option to AOL. Although each such Employee is the record holder of the option, AOL and AOL Time Warner hold or share the disposition power with respect to all of the shares of Class A Common Stock underlying the options. The filing of this Schedule 13D, however, shall not be construed as an admission for the purposes of Sections 13(d) and 13(g) of the Exchange Act and Regulation 13D-G promulgated thereunder that any of such Employees is the beneficial owner of any securities of AOL-LA other than the options and shares of Class A Common Stock underlying the options issued to such Employee. AOL and AOL Time Warner have shared power to vote and dispose of the 4,000,000 shares of Class A Common Stock that AOL purchased in the Offering, the shares of Series B Preferred Stock issued to AOL in the Reorganization, the shares of Series D Preferred Stock purchased by AOL under the Stock Purchase Agreement and the shares of B Stock and/or Class A Common Stock issuable upon exercise of the AOL Warrant. AOL and AOL Time Warner share the power to dispose of the shares of Class A Common Stock issuable upon exercise of the stock options that were granted to four employees of AOL or AOL Time Warner. Consequently, upon the conversion of the B Stock and the Series D Preferred Stock, the exercise of the AOL Warrant and, as further described in Item 6, the exercise of the stock options granted to the Employees, the Reporting Persons would beneficially own 136,791,706 shares of Class A Common Stock in the aggregate, or 68.4% of the shares of Class A Common Stock currently outstanding. However, assuming (i) the conversion of all B Stock and C Stock, (ii) the issuance and conversion of all Series D Preferred Stock and Series E Preferred Stock issued or issuable under the Stock Purchase Agreement, and (iii) the exercise and conversion of all outstanding warrants and stock options, AOL and AOL Time Warner would beneficially own approximately 42% of the 325,798,328 shares of Class A Common Stock of AOL-LA that would be issued and outstanding. Pursuant to Rule 13d-5(b)(1) promulgated under the Exchange Act, to the extent a "group" is deemed to exist by virtue of the Stockholders' Agreement, the Voting Agreement, and the AOL-ODC Registration Rights Agreement (as defined in Item 6 hereof), the Reporting Persons may be deemed to have beneficial ownership, for purposes of Sections 13(d) and 13(g) of the Exchange Act, of all of the equity securities of AOL-LA beneficially owned by the Cisneros Group. As of the date hereof, the Cisneros Group beneficially owns 4,000,000 shares of Class A Common Stock, 97,803,960 shares of Series C Preferred Stock, which represents all of such Series C Preferred Stock outstanding, currently exercisable options to purchase 120,000 shares of Class A Common Stock, and 4,536,678 shares of Series E Preferred Stock, which represents all of such Series E Preferred Stock outstanding. In addition, pursuant to the rules of the Securities and Exchange Commission, the Cisneros Group may be deemed to beneficially own an additional 9,073,356 shares of Series E Preferred Stock that it is obligated to purchase under the terms of the Stock Purchase Agreement at the closings on June 1 and August 1, 2001. Shares of Series C Preferred Stock and Series E Preferred Stock are convertible into AOL-LA's Class C Common Stock at any time, initially on a one share-for-one share basis, and such Class C Common Stock is convertible into Class A Common Stock at any time, initially on a one share-for-one share basis. As of the date hereof, the Cisneros Group beneficially owns an aggregate of 115,533,994 shares of Class A Common Stock, or approximately 35.5% of the 325,798,328 shares of Class A Common Stock that would be issued and outstanding, assuming (i) the conversion of all B Stock and C Stock, (ii) the issuance and conversion of all Series D Preferred Stock and Series E Preferred Stock issued or issuable under the Stock Purchase Agreement, and (iii) the exercise and conversion of all outstanding warrants and stock options). The Reporting Persons disclaim beneficial ownership of any AOL-LA securities owned directly or indirectly by the Cisneros Group. Pursuant to Rule 13d-5(b)(1) promulgated under the Exchange Act, to the extent a "group" is deemed to exist by virtue of the Banco Itau Registration Rights Agreement, the Reporting Persons may be deemed to have beneficial ownership, for purposes of Sections 13(d) and 13(g) of the Exchange Act, of all of the equity securities of AOL-LA beneficially owned by the Banco Itau Reporting Persons. As of the date hereof, the Banco Itau Reporting Persons beneficially own 35,997,840 shares of Class A Common Stock (assuming the exercise of an option for 60,000 shares of Class A Common Stock granted to Mr. Setubal), or approximately 11% of the 325,798,328 shares of Class A Common Stock that would be issued and outstanding, assuming (i) the conversion of all B Stock and C Stock, (ii) the issuance and conversion of all Series D Preferred Stock and Series E Preferred Stock issued or issuable under the Stock Purchase Agreement, and (iii) the exercise and conversion of all outstanding warrants and stock options. The Reporting Persons disclaim beneficial ownership of any AOL-LA securities owned directly or indirectly by the Banco Itau Reporting Persons. Other than as set forth in this Schedule 13D, to the best of the Reporting Persons' knowledge as of the date hereof, (i) neither the Reporting Persons nor any subsidiary or affiliate of the Reporting Persons nor any of the Reporting Persons' executive officers or directors, beneficially owns any shares of Class A Common Stock, and (ii) there have been no transactions in the shares of Class A Common Stock effected during the past 60 days by the Reporting Persons, nor to the best of the Reporting Persons' knowledge, by any subsidiary or affiliate of the Reporting Persons or any of the Reporting Persons' executive officers or directors. References to, and descriptions of, the Stockholders' Agreement, the Voting Agreement, the Banco Itau Registration Rights Agreement, and the AOL-LA Charter and By-laws as set forth above or incorporated in this Item 5 are qualified in their entirety by reference to the copies of such documents included as exhibits to this Schedule 13D, and are incorporated in this Item 5 in its entirety where such references and descriptions appear. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer Upon the consummation of the Offering, options to purchase 60,000 shares of Class A Common Stock at the Offering price of $8.00 per share were granted to each of the Employees as compensation for serving as a member of the Board. Under the Reporting Persons' conflicts of interests standards, each such Employee must transfer the economic benefit of his option to purchase 60,000 shares of Class A Common Stock to AOL. AOL-LA, AOL, ODC and Banco Itau-Cayman have entered into the Stock Purchase Agreement, pursuant to which AOL has purchased 4,717,374 shares of Series D Preferred Stock, ODC has purchased 4,536,678 shares of Series E Preferred Stock, and Banco Itau-Cayman has purchased 4,237,840 additional shares of Class A Common Stock, each at a price of $4.6875 per share. Pursuant to the terms of the Stock Purchase Agreement, AOL has also agreed to purchase an additional 9,434,748 shares of Series D Preferred Stock, and ODC has agreed to purchase an additional 9,073,356 shares of Series E Preferred Stock. Such purchases shall occur at closings to take place on June 1, 2001 and August 1, 2001. The exact numbers of shares to be purchased at such additional closings may be adjusted by notice from AOL-LA to each of AOL and ODC, although in no event will the aggregate numbers of shares to be purchased at such closings be less than 9,434,748 shares and 9,073,356 shares, respectively. In the event that AOL defaults in the timely payment of the full amount owed to AOL-LA with respect to any shares to be purchased by AOL under the Stock Purchase Agreement, ODC will have the right to cure such payment default by paying all or a portion of the amount of the default and receiving a number of shares equal to the amount of the default payment made by ODC divided by $4.6875. In addition, ODC would thereupon have the right to purchase from AOL such aggregate number of shares of Series B Preferred Stock, Series D Preferred Stock or Class B Common Stock, as ODC selects, up to an amount equal to the number of shares purchased from AOL-LA pursuant to the share purchase described in the preceding sentence, at a purchase price equal to $3.75. AOL has the right to cure similar defaults by ODC and to purchase shares from AOL-LA at $4.6875 per share upon any default by ODC, as well as the right to purchase up to an equal aggregate number of shares of Series C Preferred Stock, Series E Preferred Stock or Class C Common Stock from ODC in the event of such a default, at a purchase price of $3.75. The Stockholders' Agreement also contains restrictions on AOL's and ODC's abilities to (i) acquire additional equity securities of AOL-LA, except as specifically approved by the board of directors of AOL-LA, (ii) compete with AOL-LA, or (iii) transfer equity securities of AOL-LA, except as permitted by the terms of the Stockholders' Agreement, which provide for a right of first refusal to the non-transferring stockholder if the other stockholder decides to transfer any equity securities of AOL-LA owned by it. The Stockholders' Agreement further states that, in the event of a breach by AOL of its agreement not to compete with AOL-LA as described in the Stockholders' Agreement, ODC may require AOL to purchase all of ODC's equity interest in AOL-LA, for a purchase price equal to the fair market value of such equity interest plus the amount of any damages sustained as a result of such breach. In the event of a breach by ODC of its agreement not to compete with AOL-LA, AOL-LA or AOL shall have the right to purchase all of ODC's equity interest in AOL-LA, for a purchase price equal to the fair market value of such equity interest less the amount of any damages sustained as a result of such breach. The Banco Itau Registration Rights Agreement, which provides registration rights for the shares owned by the Banco Itau Reporting Persons, also provides that, in the event that the Banco Itau Reporting Persons decide to sell any of the shares purchased by them pursuant to the Stock Purchase Agreement, they must first offer such shares to AOL-LA, AOL and ODC. The Banco Itau Registration Rights Agreement also provides for rights of participation by the Banco Itau Reporting Persons in certain sales of AOL-LA equity securities to third parties by AOL, ODC and AOL-LA. In addition, reference is made to an Amended and Restated Registration Rights Agreement, dated as of March 30, 2001, by and among AOL-LA, AOL and ODC, pursuant to which AOL and ODC were granted rights to cause AOL-LA to register shares of Class A Common Stock purchased by them in the Offering or issued to them upon conversion of their shares of (i) B Stock, Series D Preferred Stock and upon the exercise of the AOL Warrant, in the case of AOL, and (ii) C Stock and Series E Preferred Stock, in the case of ODC (the "AOL-ODC Registration Rights Agreement"). References to, and descriptions of, the Stock Purchase Agreement, the AOL-ODC Registration Rights Agreement, the Stockholders' Agreement, and the Banco Itau Registration Rights Agreement as set forth above in this Item 6 are qualified in their entirety by reference to the copies of such documents included as exhibits to this Schedule 13D, and are incorporated in this Item 6 in their entirety where such references and descriptions appear. To the best of the Reporting Persons' knowledge, except as described in this Schedule 13D, there are at present no other contracts, arrangements, understandings or relationships among the persons named in Item 2 above, and between any such persons and any person, with respect to any securities of AOL-LA. The information set forth or incorporated by reference in Items 2, 3, 4, 5 and 7 is hereby incorporated by reference. Item 7. Material to be Filed as Exhibits Exhibit Number Description 1 Amended and Restated Stockholders' Agreement, dated as of March 30, 2001, by and among America Online Latin America, Inc., America Online, Inc., Aspen Investments LLC, and Atlantis Investments LLC (confidential treatment requested with respect to portions of this document). 2 Amended and Restated Registration Rights and Stockholders' Agreement, dated as of March 30, 2001, by and among America Online Latin America, Inc., Banco Itau, S.A., Banco Banerj, S.A., Banco Itau, S.A.-Cayman Branch, Itau Bank Limited, and for purposes of certain sections thereof, America Online, Inc., Atlantis Investments LLC, and Aspen Investments LLC. 3 America Online Latin America, Inc.'s Restated Certificate of Incorporation (filed as Exhibit 3.1 to Amendment No. 10 to America Online Latin America, Inc.'s Form S-1 Registration Statement (File No. 333-95051), filed with the Securities and Exchange Commission on July 27, 2000 and incorporated herein by reference). 4 Certificate of Designations, Preferences and Rights of the Series D Redeemable Convertible Preferred Stock and the Series E Redeemable Convertible Preferred Stock of America Online Latin America, Inc. 5 America Online Latin America, Inc.'s Restated By-laws (filed as Exhibit 3.2 to Amendment No. 10 to America Online Latin America, Inc.'s Form S-1 Registration Statement (File No. 333-95051), filed with the Securities and Exchange Commission on July 27, 2000 and incorporated herein by reference). 6 Amended and Restated Registration Rights Agreement, dated as of March 30, 2001, by and among America Online Latin America, Inc., America Online, Inc., Aspen Investments LLC, and Atlantis Investments LLC. 7 Joint Filing Agreement, dated January 22, 2001, between AOL Time Warner Inc. and America Online, Inc. (filed as Exhibit 7 to the Reporting Persons' Amendment No. 1 to Schedule 13D filed January 22, 2001 and incorporated herein by reference). 8 Stock Purchase Agreement, dated as of March 30, 2001, by and among America Online Latin America, Inc., America Online, Inc., Aspen Investments LLC, Atlantis Investments LLC, and Banco Itau, S.A.-Cayman Branch. 9 Voting Agreement, dated as of March 30, 2001, by and among America Online Latin America, Inc. and the Stockholders named on Schedule A thereto. 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: April 13, 2001 By:/s/ Brenda C. Karickhoff Brenda C. Karickhoff Vice President AMERICA ONLINE, INC. Date: April 13, 2001 By:/s/ Randall J. Boe Randall J. Boe Senior Vice President Schedule I Addresses of the Cisneros Group and the Banco Itau Reporting Persons Atlantis Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Aspen Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Banco Itau, S.A. 176 Rua Boa Vista Sao Paulo, Brazil Banco Banerj, S.A. Rua da Alfandega 28, 9th Floor Rio de Janeiro, Brazil Itau Bank Limited Ansbacher House, 3rd Floor 20 Genesis Close -P.O. Box 10141 Grand Cayman Cayman Islands, B.W.I. Banco Itau, S.A.-Cayman Branch Ansbacher House, 3rd Floor 20 Genesis Close -P.O. Box 10141 Grand Cayman Cayman Islands, B.W.I. Schedule II DIRECTORS AND EXECUTIVCE OFFICERS OF AOL TIME WARNER The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of AOL Time Warner. Except as indicated below, each such person is a U.S. citizen, and the business address of each such person is 75 Rockefeller Plaza, New York, New York 10019. Board of Directors - ------------------ Name and Title Present Principal Occupation - -------------- ---------------------------- Stephen M. Case Chairman of the Board; Chairman of the Board AOL Time Warner Inc. Gerald M. Levin Chief Executive Officer; Chief Executive Officer AOL Time Warner Inc. Kenneth J. Novack Vice Chairman; Vice Chairman AOL Time Warner Inc. R.E. Turner Vice Chairman and Senior Advisor; Vice Chairman and Senior Advisor AOL Time Warner Inc. Daniel F. Akerson Chairman of the Board and Chief Executive Officer; XO Communications, Inc. 11111 Sunset Hills Road Reston, VA 20190 (a broadband and communications company) James L. Barksdale Partner; The Barksdale Group c/o AOL Time Warner Inc. (a venture capital firm) Stephen F. Bollenbach President and Chief Executive Officer; Hilton Hotels Corporation 9336 Civic Center Drive Beverly Hills, CA 90210 Frank J. Caufield Partner; Kleiner Perkins Caufield & Byers Four Embarcadero Center San Francisco, CA 94111 (a venture capital partnership) Miles R. Gilburne Director; AOL Time Warner Inc. Carla A. Hills Chairman and Chief Executive Officer; Hills & Company 1200 19th Street, NW Washington, DC 20036 (international trade and investment consultants) Reuben Mark Chief Executive Officer; Colgate-Palmolive Company 300 Park Avenue New York, NY 10022 (consumer products) Michael A. Miles Former Chairman of the Board and Chief Executive Officer of Phillip Morris Companies Inc.; Director of Various Companies Three Lakes Drive Northfield, IL 60093 Richard D. Parsons Co-Chief Operating Officer; Co-Chief Operating Officer AOL Time Warner Inc. Robert W. Pittman Co-Chief Operating Officer; Co-Chief Operating Officer AOL Time Warner Inc. Franklin D. Raines Chairman and Chief Executive Officer; Fannie Mae 3900 Wisconsin Avenue NW Washington, DC 20016-2806 (a non-banking financial services company) Francis T. Vincent, Jr. Chairman of Vincent Enterprises (private Investor) and Director of Various Companies; 300 First Stamford Place Stamford, CT 06902 Executive Officers Who Are Not Directors - ---------------------------------------- Name Title and Present Principal Occupation - ---- -------------------------------------- Paul T. Cappuccio Executive Vice President, General Counsel and Secretary; AOL Time Warner Inc. David Colburn Executive Vice President; AOL Time Warner Inc. J. Michael Kelly Executive Vice President and Chief Financial Officer; AOL Time Warner Inc. Kenneth B. Lerer Executive Vice President; AOL Time Warner Inc. William J. Raduchel Executive Vice President and Chief Technology Officer; AOL Time Warner Inc. Mayo S. Stuntz, Jr. Executive Vice President; AOL Time Warner Inc. George Vradenburg, III Executive Vice President for Global and Strategic Policy; AOL Time Warner Inc. SCHEDULE III DIRECTORS AND EXECUTIVE OFFICERS OF AMERICA ONLINE, INC. The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of America Online, Inc. Unless otherwise noted, each such person is a U.S. citizen, and the business address of each such person is 75 Rockefeller Plaza, New York, New York 10019. Board of Directors - ------------------ Name and Title Present Principal Occupation - -------------- ---------------------------- Paul T. Cappuccio Executive Vice President, General Counsel and Secretary; AOL Time Warner Inc. J. Michael Kelly Executive Vice President and Chief Financial Officer; AOL Time Warner, Inc. Barry M. Schuler Chairman and Chief Executive Officer; Chairman and Chief Executive Officer America Online, Inc. Executive Officers Who Are Not Directors - ---------------------------------------- Name Title and Present Principal Occupation - ---- -------------------------------------- Janice Brandt Vice Chair and Chief Marketing Officer; America Online, Inc. Theodore J. Leonsis Vice Chair and New Product Officer; America Online, Inc. Raymond J. Oglethorpe President; America Online, Inc. Joseph A. Ripp Executive Vice President, Chief Financial Officer and Treasurer; America Online, Inc. Mark E. Stavish Executive Vice President, Human Resources; America Online, Inc. Randall J. Boe Senior Vice President, General Counsel and Secretary; America Online, Inc. Ann Brackbill Senior Vice President, Corporate Communications; America Online, Inc. EX-1 2 0002.txt STOCKHOLDERS' AGREEMENT Exhibit 1 AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT by and among AMERICA ONLINE LATIN AMERICA, INC., a Delaware corporation, AMERICA ONLINE, INC., a Delaware corporation, ASPEN INVESTMENTS LLC, a Delaware limited liability company, and ATLANTIS INVESTMENTS LLC, a Delaware limited liability company dated as of March 30, 2001 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS..........................................................3 SECTION 1.1 DEFINITIONS.....................................................3 SECTION 1.2 USAGE GENERALLY; INTERPRETATION................................11 ARTICLE II PURPOSE...........................................................11 SECTION 2.1 PURPOSE.......................................................11 SECTION 2.2 NO PARTNERSHIP................................................12 SECTION 2.3 VOTING........................................................12 ARTICLE III VOTING PROVISIONS.................................................12 SECTION 3.1 VOTING AGREEMENTS.............................................12 ARTICLE IV NON-COMPETITION...................................................13 SECTION 4.1 NON-COMPETITION WITH THE COMPANY..............................13 SECTION 4.2 REPURCHASE UPON BREACH........................................15 ARTICLE V RESTRICTIONS ON TRANSFERS..........................................19 SECTION 5.1 PROHIBITED TRANSFERS..........................................19 SECTION 5.2 PERMITTED TRANSFERS...........................................19 SECTION 5.3 RIGHTS OF FIRST REFUSAL.......................................21 SECTION 5.4 CLOSING DELIVERIES............................................22 SECTION 5.5 DIRECT COMPREHENSIVE COMPETITOR...............................22 SECTION 5.6 PURCHASE OF THE ODC HOLDINGS; INSTALLMENT PAYMENTS.............23 SECTION 5.7 THIRD-PARTY EQUITY PARTICIPANTS................................23 ARTICLE VI REGISTRATION RIGHTS...............................................25 SECTION 6.1 REGISTRATION RIGHTS...........................................25 ARTICLE VII DEFAULT IN CAPITAL CONTRIBUTIONS; ODC ADDITIONAL PROTECTIONS; ODC NON-MONETARY OBLIGATIONS......................................................26 SECTION 7.3 ODC NON-MONETARY CONTRIBUTIONS................................26 ARTICLE VIII OTHER AGREEMENTS; LEGENDS.......................................26 SECTION 8.1 LEGENDS.......................................................26 SECTION 8.2 LIMITATION OF LIABILITY.......................................27 ARTICLE IX TERM AND TERMINATION..............................................28 SECTION 9.1 TERM..........................................................28 SECTION 9.2 TERMINATION...................................................28 ARTICLE X STANDSTILL PROVISIONS; INDEMNIFICATION.............................28 SECTION 10.1 LIMITATIONS ON HOLDERS' OWNERSHIP............................28 SECTION 10.2 INDEMNIFICATION..............................................29 ARTICLE XI MISCELLANEOUS.....................................................30 SECTION 11.1 CONFIDENTIAL INFORMATION.....................................30 SECTION 11.2 GOVERNING LAW................................................31 SECTION 11.3 ENTIRE AGREEMENT.............................................32 SECTION 11.4 ASSIGNMENT...................................................32 SECTION 11.5 SURVIVAL.....................................................32 SECTION 11.6 NOTICES......................................................32 SECTION 11.7 COUNTERPARTS; FACSIMILES.....................................34 SECTION 11.8 EXPENSES.....................................................34 SECTION 11.9 FURTHER ASSURANCES...........................................34 SECTION 11.10 CONSTRUCTION................................................34 SECTION 11.11 SEVERABILITY................................................34 AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT This AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this "Agreement") is made as of this 30th day of March, 2001 (the "Effective Date"), by and among America Online Latin America, Inc., a Delaware corporation having its principal place of business at 6600 N. Andrews Avenue, Suite 500, Fort Lauderdale, Florida 33309 (the "Company"), America Online, Inc., a Delaware corporation having its principal place of business at 22000 AOL Way, Dulles, Virginia 20166 ("AOL"), Aspen Investments LLC, a Delaware limited liability company having its principal place of business at 550 Biltmore Way, Suite 900, Coral Gables, Florida 33134 ("Aspen"), and Atlantis Investments LLC, a Delaware limited liability company having its principal place of business at 550 Biltmore Way, Suite 900, Coral Gables, Florida 33134 ("Atlantis", and together with Aspen, "ODC"). AOL, Atlantis and Aspen are sometimes hereinafter referred to, collectively, as the "Stockholders" and, individually, as a "Stockholder." WHEREAS, the Company, AOL and Riverview Media Corp., a British Virgin Islands corporation ("Riverview"), previously entered into a Stockholders' Agreement, dated as of August 7, 2000 (the "Original Agreement"); WHEREAS, pursuant to the AOL-LA Share Transfer and Assignment Agreement, dated as of December 28, 2000, by and between Riverview, Aspen and Atlantis (the "Assignment Agreement"), Riverview assigned to each of Aspen and Atlantis all of its right, title and interest in and to 48,649,203 shares of the Company's Series C Redeemable Convertible Preferred Stock, par value $.01 per share (the "Series C Preferred Stock"), and 2,000,000 shares of the Company's Class A Common Stock, par value $.01 per share (the "Class A Common Stock"); WHEREAS, pursuant to the provisions of a Stock Purchase Agreement, dated as of March 30, 2001 (the "Stock Purchase Agreement"), by and among the Company, the Stockholders and the other parties named therein, (i) AOL has agreed to purchase from the Company shares of the Company's Series D Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series D Preferred Stock") and/or additional shares of the Company's Series B Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series B Preferred Stock"), and (ii) ODC has agreed to purchase from the Company shares of the Company's Series E Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series E Preferred Stock") and/or additional shares of Series C Preferred Stock, and in connection therewith the parties wish to make such shares of the Series D Preferred Stock and the Series E Preferred Stock, and such additional shares, if any, of the Series B Preferred Stock and Series E Preferred Stock, as well as any capital stock issuable upon conversion of any thereof, subject to the provisions of the Original Agreement and to effect certain additional changes, and in connection therewith, the Company and the Stockholders desire to amend and restate the Original Agreement as described herein; WHEREAS, the Company has an authorized capital of 1,750,000,000 shares of common stock, consisting of 1,250,000,000 shares of Class A Common Stock, 250,000,000 shares of Class B Common Stock, par value $.01 per share (the "Class B Common Stock"), 250,000,000 shares of Class C Common Stock, par value $.01 per share (the "Class C Common Stock", and collectively with the Class A Common Stock and the Class B Common Stock, the "Common Stock"), and 500,000,000 shares of Preferred Stock, par value $.01 per share, consisting of 150,000,000 shares of Series B Preferred Stock, 150,000,000 shares of Series C Preferred Stock , 25,000,000 shares of Series D Preferred Stock and 25,000,000 shares of Series E Preferred Stock, (the Series E Preferred Stock together with the Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock are sometimes collectively referred to herein as, the "Preferred Stock"); WHEREAS, as of the date hereof AOL owns all of the issued and outstanding shares of Series B Preferred Stock and Series D Preferred Stock and will, pursuant to the Stock Purchase Agreement, acquire additional shares of Series D Preferred Stock and/or Series B Preferred Stock, and ODC owns or has the sole voting power for all of the issued and outstanding shares of Series C Preferred Stock and Series E Preferred Stock and will, pursuant to the Stock Purchase Agreement, acquire additional shares of Series E Preferred Stock and/or Series C Preferred Stock; WHEREAS, upon the satisfaction of certain conditions, the Series D Preferred Stock will automatically convert into Series B Preferred Stock and the Series E Preferred Stock will automatically convert into Series C Preferred Stock; WHEREAS, AOL and its permitted transferees may elect to convert any or all of the shares of Series B Preferred Stock and Series D Preferred Stock into shares of Class B Common Stock and ODC and its permitted transferees may elect to convert any or all of the shares of Series C Preferred Stock and Series E Preferred Stock into shares of Class C Common Stock; WHEREAS, AOL and its permitted transferees may elect to convert the shares of Class B Common Stock received upon conversion of the shares of Series B Preferred Stock and Series D Preferred Stock into shares of Class A Common Stock and ODC and its permitted transferees may elect to convert the shares of Class C Common Stock received upon conversion of the shares of Series C Preferred Stock and Series E Preferred Stock into shares of Class A Common Stock; WHEREAS, upon the transfer of ownership of any shares of Series B Preferred Stock or Series C Preferred Stock, other than a transfer permitted under Section 5.2 or pursuant to the provisions of the Certificate of Incorporation (as defined herein) such shares shall, automatically and with no further action being required by any party to such transfer or otherwise, be converted into shares of Class B Common Stock or Class C Common Stock at the applicable Conversion Ratio (as defined in the Certificate of Incorporation) then in effect and thereafter each such share of Class B Common Stock or Class C Common Stock, as applicable, immediately and automatically shall be converted into one share of Class A Common Stock; WHEREAS, upon the transfer of ownership of any shares Series D Preferred Stock or Series E Preferred Stock, other than a transfer permitted under Section 5.2 or pursuant to the provisions of the Certificate of Designations (as defined herein), such shares shall, automatically and with no further action being required by any party to such transfer or otherwise, be converted into shares of Class A Common Stock at conversion ratios equal to the Class D Conversion Ratio or Class E Conversion Ratio, as applicable (as such terms are defined in the Certificate of Designations); WHEREAS, upon the transfer of ownership of any shares of Class B Common Stock or Class C Common Stock, other than a transfer permitted under Section 5.2 or pursuant to the Certificate of Incorporation, such shares shall, automatically and with no further action being required by any party to such transfer or otherwise, be converted into shares of Class A Common Stock at a rate of one share of Class A Common Stock for each share of Class B Common Stock or Class C Common Stock; WHEREAS, the Company and the Stockholders have agreed that the Company shall, at the request of a Holder (as defined herein), register under the Securities Act (as defined herein) and register or qualify under any applicable state securities or Blue Sky laws, shares of Class A Common Stock owned from time to time by such Holder so as to permit the Holder to sell in the public markets the shares of Class A Common Stock into which such shares of Class B Common Stock and Class C Common Stock are converted; WHEREAS, the Company and the Stockholders have agreed on certain restrictions with respect to the transfer of shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Class B Common Stock and Class C Common Stock; and WHEREAS, the Stockholders wish to promote their mutual interests by imposing certain restrictions and obligations on each other and on the shares of Preferred Stock and Common Stock now or hereafter owned by each, and, further, to provide for certain matters pertaining to the management and governance of the Company; NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, the parties hereto hereby agree to amend and restate the Original Agreement, as amended by the First Amendment, in its entirety as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. The following terms shall, for the purposes of this Agreement and the Schedules and Exhibits hereto, have the following meanings (terms defined in the singular or the plural include the plural or the singular, as the case may be): "Access Services" shall mean, collectively, PC Access Services, TV Access Services and Wireless Access Services. "Acquiring Party" has the meaning given in Section 4.2(b). "Action" has the meaning given in the Certificate of Incorporation. "Affiliate" of any Person shall mean any other Person that, directly or indirectly, controls, is under common control with or is controlled by that Person. For purposes of this definition, "control" (including, with its correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Aggregated Significant Competitors" with respect to Access Services shall mean Persons (a) that in the aggregate have Access Service Permanent Subscribers in those countries within the Territory in which the Company provides Access Services equal to or greater than thirty-five percent (35%) of the Access Service Permanent Subscribers of the Company in the Territory, provided that such Persons in the aggregate have at least 315,000 PC Access Service Permanent Subscribers in the Territory, or (b) that in the aggregate have Access Service Permanent Subscribers in Brazil equal to or greater than thirty-five (35%) of the Access Service Permanent Subscribers of the Company in Brazil, provided that such Persons have at least 105,000 PC Access Service Permanent Subscribers in Brazil. For avoidance of doubt, IP (i.e., Internet protocol) telephony and related subscribers and customers shall not be considered in determining whether a Person is a Significant Competitor or Persons together are Aggregated Significant Competitors. "AOL" has the meaning set forth in the preamble. "AOL-branded" has the meaning given in the Certificate of Incorporation. "AOL Directors" shall mean, collectively, the Class B Directors of the Company (as such term is defined in the Certificate of Incorporation). "AOL Latin America" shall mean AOL Latin America, S.L. (f/k/a Tesjuates, S.L.) a limited liability company organized under the laws of the Kingdom of Spain and a wholly owned Subsidiary of the Company. "AOL License" shall mean the AOL License Agreement, dated as of August 7, 2000, by and between AOL and AOL Latin America. "AOL Marks" has the meaning set forth in the AOL License. "AOL OLS Agreement" shall mean the AOL Online Services Agreement, dated as of August 7, 2000, by and between AOL and AOL Latin America. "AOL Service(s)" shall mean the Interactive Services that are PC Access Services provided worldwide, including the AOL-US Service and any other international AOL Services, under the brand name America Online(TM) and/or AOL(TM) existing as of the date hereof or in the future as modified from time to time. "AOL Stock" has the meaning given in Section 4.2(a). "AOL-US Service" shall mean the principal AOL Services provided by AOL to United States residents on the date hereof, as such service shall be modified from time to time. "Aspen" has the meaning set forth in the preamble. "Atlantis" has the meaning set forth in the preamble. "Board" or "Board of Directors" shall mean the Board of Directors of the Company. "Business" has the meaning given in Section 2.1(a). "Business Day" shall mean any day, other than a Saturday or Sunday, on which federally chartered banks in the United States are open for business. "By-laws" shall mean the By-laws of the Company as in effect as of the date of this Agreement, as the same may be amended from time to time in accordance with the terms thereof. "Call Option" has the meaning given in Section 5.7(b). "Call Option Closing" has the meaning given in Section 5.7(b). "Certificate of Designations" shall mean the Certificate of Designations of the Company which authorizes the issuance of the Series D Preferred Stock and the Series E Preferred Stock. "Certificate of Incorporation" shall mean the Certificate of Incorporation of the Company as in effect as of the date of this Agreement, as the same may be amended from time to time in accordance with the terms thereof. "CIS License" shall mean the CIS License Agreement, dated as of August 7, 2000, by and between AOL and AOL Latin America. "CIS Marks" has the meaning given in the CIS OLS Agreement. "CIS OLS Agreement" shall mean the CIS Online Services Agreement, dated as of August 7, 2000, by and between CompuServe and AOL Latin America. "Cisneros Family" shall mean Ricardo Cisneros, Gustavo Cisneros and/or their lineal descendants, individually or collectively and/or any trusts for the exclusive benefit of any one or more of such persons. "Class A Common Stock" has the meaning set forth in the recitals above. "Class B Common Stock" has the meaning set forth in the recitals above. "Class C Common Stock" has the meaning set forth in the recitals above. "Commission" shall mean the Securities and Exchange Commission, or any successor agency performing the functions currently performed by the Securities and Exchange Commission. "Common Stock" has the meaning set forth in the recitals above. "Communication Services" has the meaning given in the Certificate of Incorporation. "Company" has the meaning set forth in the first paragraph hereof. "Company Securities" shall mean any shares of Common Stock or other Voting Stock. "CompuServe" shall mean CompuServe Interactive Services, Inc. "CompuServe-branded" shall mean, with respect to any internet or online service that such service includes the word "CompuServe" as an integral part of the name of such internet or online service. For the avoidance of doubt, a reference to an internet or online service being a "CompuServe" internet or online service shall not make such service "CompuServe-branded". "Confidential Information" has the meaning given in Section 11.1. "Content" has the meaning given in the Certificate of Incorporation. "Damages" has the meaning given in the Certificate of Incorporation. "Default Rate" shall mean a per annum rate of interest equal to the Prime Rate plus two hundred (200) basis points. "Direct Comprehensive Competitor" has the meaning given in Section 5.5. "Directly Competitive Service" has the meaning given in Section 6.2(a). "Disproportionate Dilution" has the meaning given in Section 5.7(b). "Effective Date" has the meaning set forth in the preamble. "Employee" has the meaning given in the Certificate of Incorporation. "Encumbrance" shall mean any mortgage, pledge, security interest, lien, restriction on use or transfer, other than those imposed by law, voting agreement, adverse claim or encumbrance or charge of any kind (including any agreement to give any of the foregoing), any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or any agreement to give, any financing statement under the Uniform Commercial Code or similar law of any jurisdiction. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended. "Exercise Notice" has the meaning given in Section 7.1(b). "Fair Market Value" shall mean (i) with respect to a share of any Common Stock of the Company as of any date, the average closing price for a share of Class A Common Stock as quoted on any national securities exchange or on the NASDAQ National Market System for the fifteen trading days ending on the second trading day prior to such date as reported in the Eastern Edition of The Wall Street Journal and (ii) as of any date with respect to a share of any Voting Stock of the Company convertible into Common Stock, the aggregate Fair Market Value of the shares of Common Stock into which such share of Voting Stock is then convertible. If the Class A Common Stock shall not be listed on any such exchange or traded on any such automated quotation system on all such trading days during such 15-trading day period, the closing or latest reported price for Class A Common Stock in the over-the-counter market on each trading day on which such shares are not so listed or traded as reported by NASDAQ or, if not so reported, then the last sale price for each such day, as reported by the National Quotation Bureau Incorporated, or if such organization is not in existence, by an organization providing similar services (as determined by the Board), shall be deemed to be the closing price on such trading day. If, at a time when the Class A Common Stock is trading other than on such an exchange, there shall not have been a sale on any such trading day, the mean of the last reported bid and asked quotations as reported in the Eastern Edition of The Wall Street Journal for Class A Common Stock on such day shall be deemed to be the closing price. If the shares of Class A Common Stock shall not be so reported on any of such trading days, then the Fair Market Value per share of such Class A Common Stock shall be the fair market value thereof as determined in the reasonable judgment of the Board of Directors. For the purpose hereof, "trading day" shall mean a day on which the securities exchange or automated quotation system specified herein shall be open for business or, if the shares of Class A Common Stock shall not be listed on such exchange or automated quotation system for such period, a day with respect to which quotations of the character referred to in the next preceding sentence shall be reported. "GCL" shall mean the General Corporation Law of the State of Delaware. "GLA" shall mean Galaxy Latin America, LLC, a limited liability company organized under the laws of the State of Delaware, and its successors. "Governmental Authority" shall mean any domestic or foreign national, state or municipal or other local government or multi-national body, any subdivision, agency, commission or authority thereof, or any quasi-governmental or private body exercising any regulatory authority thereunder and any corporation, partnership or other entity directly or indirectly owned by or subject to the control of any of the foregoing. "Holder" shall mean, as of any date, a holder of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Class B Common Stock or Class C Common Stock outstanding on such date. "Interactive Services" has the meaning given in the Certificate of Incorporation. "Internet Portal Services" has the meaning given in the Certificate of Incorporation. "Launch" shall mean the first commercial availability of an Interactive Service to potential Subscribers in the Territory or a country in the Territory, as applicable. "Localized" or "Localization" shall mean (a) the translation of an Interactive Service into the language(s) primarily used in a particular country; and (b) the localization of Content and/or Communication Services, as the case may be, available through such Interactive Service that is specific to such country. "Maximum Disproportionate Dilution" has the meaning given in section 5.7(b). "Non-Access Service" has the meaning given in Section 6.2(a). "ODC" has the meaning given in the preamble. "ODC Business Unit" has the meaning given in Section 5.2. "ODC Directors" shall mean, collectively, the Class C Directors of the Company (as such term is defined in the Certificate of Incorporation). "Operating Entity" has the meaning given in the Certificate of Incorporation. "Original Agreement" has the meaning set forth in the recitals above. "Parent Entity" has the meaning given in the Certificate of Incorporation. "Party" shall mean each of AOL, ODC and the Company, and each other Person who becomes a party to this Agreement in accordance with the provisions hereof. "PC Access Services" has the meaning given in the Certificate of Incorporation. "Permanent Subscriber" shall mean, as of any date and with respect to any Access Service, a Subscriber that has used the applicable Access Service during the longer of (i) the ninety (90)-day period preceding such date and (ii) the period preceding such date consisting of sixty (60) days plus the duration of any free trial period involving such service to which such person is entitled. Notwithstanding the foregoing, if one or more Access Services is bundled with one or more other Access Services, a Subscriber shall be deemed to be a Permanent Subscriber if the foregoing test has been met with respect to at least one of such bundled Access Services. "Person" shall mean an individual, sole proprietorship, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, mutual company, joint stock company, estate, union, employee organization, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or a Governmental Authority. "Preferred Stock" has the meaning set forth in the recitals above. "Prime Rate" shall mean, for any date, the rate of interest per annum publicly announced from time to time as the prime rate in effect as of such date as reported in the "Money Rates" column of the Eastern Edition of The Wall Street Journal or other comparable source as agreed to by the Parties if The Wall Street Journal is not then publishing such figures. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. "Public Sale" shall mean a sale of securities pursuant to an offering registered under the Securities Act or in a transaction pursuant to Rule 144 of the Securities Act. "Purchase Notice" has the meaning given in Section 5.7(b). "Registration Rights Agreement" has the meaning given in Section 6.1. "Restricted Activities" has the meaning given in Section 4.1(a). "Restricted Transferee" shall mean any Person that would cause a Stockholder to be in violation of the non-competition provisions of Article IV hereof if such person became and remained a Special Affiliate of such Stockholder and shall include, without limitation, each of Terra Networks, Star Media, Universo Online, IG.com, El Sitio/O Site, Telmex/Prodigy, Ciudad Internet/Clarin, Microsoft or any of their respective Affiliates. "RSL-LA" shall mean RSL Communications, Latin America, Ltd., an international business company organized under the laws of the British Virgin Islands, and its successors in interest. "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder, as amended. "Series B Preferred Stock" has the meaning set forth in the recitals above. "Series C Preferred Stock" has the meaning set forth in the recitals above. "Series D Preferred Stock" has the meaning set forth in the recitals above. "Series E Preferred Stock" has the meaning set forth in the recitals above. "Significant Competitor" with respect to Access Services shall mean any Person (a) having Access Service Permanent Subscribers in those countries within the Territory in which the Company provides Access Services equal to or greater than twenty-five percent (25%) of the Access Service Permanent Subscribers of the Company in the Territory, provided that such Person has at least 225,000 PC Access Service Permanent Subscribers in the Territory, or (b) having Access Service Permanent Subscribers in Brazil equal to or greater than twenty-five percent (25%) of the Access Service Permanent Subscribers of the Company in Brazil, provided that such Person has at least 75,000 PC Access Service Permanent Subscribers in Brazil. "Special Affiliate" has the meaning given in Section 4.1(a). "Special Committee" has the meaning given in the Certificate of Incorporation. "Stock Purchase Agreement" has the meaning set forth in the recitals above. "Stockholder" has the meaning set forth in the preamble. "Strategic Partner" shall mean 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. "Subscriber" shall mean, as of any date of determination and with respect to any Interactive Service, any Person who has opened an account with or otherwise registered as a user of such Interactive Service. "Subsidiary" has the meaning given in the Certificate of Incorporation. "Term" has the meaning given in Section 9.1. "Territory" has the meaning given in the Certificate of Incorporation. "Traditional Media Services" shall mean the delivery of movies, television shows, sporting events and other forms of traditional entertainment products intended to be viewed or experienced in uninterrupted fashion (i.e., non-interactive) from beginning to end over ISDN, cable, satellite, fiber optics or other form of broadcast media. "Transfer" shall mean, whether directly or indirectly by merger, operation of law or otherwise, any sale, assignment, conveyance, transfer, donation or any other means to dispose of, or pledge, hypothecate or otherwise encumber in any manner whatsoever, or permit or suffer any Encumbrance. "TV Access Services" has the meaning given in the Certificate of Incorporation. "Voting Stock" shall mean securities having the right to vote generally in any election of Directors of the Company (other than solely by reason of the occurrence of an event). "Warrant" shall mean that certain warrant, dated August 7, 2000, issued by the Company to AOL. "Wholly Owned Affiliate" shall mean with respect to any Person any other Person which is directly or indirectly wholly owned by such Person, directly or indirectly wholly owns such Person or is directly or indirectly wholly owned by the same Person as such Person, with such ownership to mean possession of both 100% of the equity interest and 100% of the voting interest, except for directors' qualifying shares, if any. Any Person that is directly or indirectly wholly-owned by the Cisneros Family shall be deemed a Wholly Owned Affiliate of ODC, and any Person that is directly or indirectly wholly owned by the AOL Time Warner, Inc. a Delaware corporation, shall be deemed a Wholly Owned Affiliate of AOL. "Wireless Access Services" has the meaning given in the Certificate of Incorporation. "Worse Offer" has the meaning given in Section 5.5. Section 1.2 Usage Generally; Interpretation. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. All references herein to Articles and Sections shall be deemed to be references to Articles and Sections of this Agreement unless the context otherwise requires. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. All references to Dollars or use of the "$" symbol shall mean United States Dollars. ARTICLE II PURPOSE Section 2.1 Purpose. The Stockholders have entered into this Agreement to provide for the manner of dealing in their capacities as stockholders with certain matters involving the management, conduct and operation of the Company, including without limitation: (a) To ensure that the Company's sole line of business shall be to provide Interactive Services within the Territory (the "Business"); provided, however, that unless and until AOL and ODC shall otherwise agree in accordance with the provisions hereof and the Certificate of Incorporation, the Business of the Company shall be limited to providing (i) PC Access Services, AOL-branded TV Access Services, AOL-branded Wireless Access Services, and Internet Portal Services in the Territory; and (ii) Content, management and related activities on the AOL online service or any other AOL-branded property, including creating, maintaining and managing for AOL, English and Spanish-language versions of a mini channel directed at the Hispanic audience in the United States, and taking all actions necessary or desirable to carry out and perform such activities and any other activities contemplated, either explicitly or implicitly, thereby, including executing, delivering and performing any agreements, documents and instruments entered into in connection therewith; provided, further, however, that the Company shall not Launch any TV Access Services, Wireless Access Services or Internet Portal Services in any country within the Territory unless and until such Launch shall have been approved by the Special Committee in accordance with the provisions of the Certificate of Incorporation. (b) To ensure that the Company conducts the Business under the brand names "AOL" and/or "America Online" pursuant to the terms and conditions of the AOL License and CompuServe pursuant to the terms and conditions of the CIS License. Section 2.2 No Partnership. (a) Nothing in this Agreement shall be construed as creating between or among any of the Parties a partnership or joint venture. (b) Except as expressly provided herein or as approved in writing by the represented Party, no Party shall have the right to represent the other Party in negotiations with third parties. No Party shall have the right to enter into an agreement with a third party for the account of the other Party or for their joint account, except as expressly provided herein or as may be hereafter approved, or agreed to, by the Parties in writing. Section 2.3 Voting. To effectuate the intent of Section 2.1 and subject to any agreement reached by the Stockholders in connection with the admission of a third-party equity participant in the Company as provided in Section 5.7, the Stockholders shall vote their shares of Voting Stock in accordance with the provisions of Article III hereof. ARTICLE III VOTING PROVISIONS Section 3.1 Voting Agreements. The Stockholders agree to vote all shares of Voting Stock held by them or their respective Affiliates so as to cause the following: (a) The election of each Class A Director (as defined in the Certificate of Incorporation) proposed for election by the Special Committee; and (b) The approval of any expansion of the Business in which the Company shall be permitted to engage as and when (i) the Company obtains the right to engage in any such expanded Business in accordance with the provisions of Section 2.9 of the AOL License and (ii) the Company shall elect to pursue such expanded business in accordance with the provisions of the AOL License and the Certificate of Incorporation, including, without limitation, voting to approve any amendment of the Certificate of Incorporation as and to the extent required to effect any such expansion of the Business. ARTICLE IV NON-COMPETITION Section 4.1 Non-Competition with the Company (a)(i) Subject to the cure provisions of Section 4.2(b), from August 7, 2000 until December 15, 2003 and thereafter for so long as each of AOL and ODC, together with their respective Wholly-Owned Affiliates and, with respect to ODC only, Cisneros Family members, holds shares of Voting Stock equal to at least twenty percent (20%) of the issued and outstanding shares of Voting Stock (as adjusted to negate the effect of any of the following that occur after August 7, 2000: (1) the admission of third parties admitted as equity participants as contemplated in Section 5.7 hereof, (2) the issuance of any Company Securities by the Company, including pursuant to the Stock Purchase Agreement, or (3) the issuance of any Company Securities upon exercise of the Warrant) no Stockholder (nor any third party admitted as a stockholder of the Company in accordance with this Agreement) nor any Special Affiliate thereof shall, directly or indirectly, independently of the Company or the other Stockholders, through a Special Affiliate or otherwise, provide, acquire or hold any interest in: (A) a Person providing, or otherwise participating in the provision within the Territory of, a PC Access Service that is a Significant Competitor or Persons providing, or otherwise participating in the provision within the Territory of, PC Access Services that taken together are Aggregated Significant Competitors; or, (B) in the case of AOL and its Special Affiliates, a Spanish or Portuguese language AOL-branded or CompuServe-branded Internet Portal Service targeted at end users residing in the Territory (except that AOL shall have the right to offer such service in one or more countries within the Territory directly or together with a third party pursuant to and in compliance with the provisions of Section 2.9 of the AOL License). (ii) Subject to the cure provisions of Section 4.2(b), from August 7, 2000 until August 7, 2005 and thereafter for so long as each of AOL and ODC, together with their respective Wholly-Owned Affiliates and, with respect to ODC only, Cisneros Family members, holds shares of Voting Stock equal to at least twenty percent (20%) of the issued and outstanding shares of Voting Stock (as adjusted to negate the effect of (1) the admission of third parties admitted as equity participants, the result of which is that ODC suffers a disproportionate dilution as contemplated in Section 5.7(b) hereof or (2) the issuance of any Company Securities by the Company upon the exercise of the Warrant) neither AOL nor any Special Affiliate thereof shall, directly or indirectly, independently of the Company or the other Stockholders, through a Special Affiliate or otherwise, provide, acquire or hold any interest in a Person providing in the Territory, or otherwise participating in the provision within the Territory of, an AOL-branded TV Access Service or an AOL-branded Wireless Access Service. (iii) Subject to the cure provisions of Section 4.2(b), from August 7, 2000 until August 7, 2005 neither ODC nor any Special Affiliate thereof shall, directly or indirectly, independently of the Company or the other Stockholders, through a Special Affiliate or otherwise, provide, acquire or hold any interest in a Person providing in the Territory, or otherwise participating in the provision within the Territory of, TV Access Services or Wireless Access Services that is a Significant Competitor or Persons providing or otherwise participating in the provision within the Territory of TV Access Services or Wireless Access Services that taken together are Aggregated Significant Competitors. For purposes of this Section 4.1(a), "Special Affiliate" shall mean any Affiliate or other entity in which a Party or the Cisneros Family holds a direct and/or indirect ownership interest of at least thirty-five percent (35%), or, in the case of RSL-LA or GLA, in which ODC or the Cisneros Family holds a direct and/or indirect ownership interest of greater than fifty percent (50%). For the purposes of this Section 4.1(a), "Access Services", as it relates to the definition of PC Access Services, TV Access Services and Wireless Access Services, shall include what would otherwise be a non-Access Service if any such services are bundled with a third-party Access Service in a joint venture, profit sharing, joint marketing or like arrangement, whereby: (x) the non-Access Service serves as the default homepage for the Access Service, (y) the non-Access Service and Access Service are promoted or marketed as the same service or under the same brand, or (z) consumers otherwise may reasonably conclude that such bundled services are one and the same. For the avoidance of doubt, a link on the homepage of a third-party Access Service to a non-Access Service and/or the promotion of the non-Access Service as one of the services available to the end users of the Access Service shall not render the non-Access Service(s) an "Access Service" for purposes of this Section 4.1(a). (All prohibited activities under this Section 4.1(a) shall be collectively referred to as "Restricted Activities".) For the avoidance of doubt, (i) with respect to PC Access Services, TV Access Services and Wireless Access Services, a Stockholder shall not be deemed to be engaging in a Restricted Activity, regardless of whether the applicable Person is a Significant Competitor or together with other Persons is an Aggregated Significant Competitor, unless the Stockholder has a direct and/or indirect ownership interest in the applicable Person or Persons of at least thirty five percent (35%) and (ii) ODC shall not be deemed to be engaging in a Restricted Activity with respect to GLA and/or RSL-LA, regardless of whether GLA or RSL-LA is a Significant Competitor or taken together are Aggregated Significant Competitors, unless ODC or the Cisneros Family has a direct and/or indirect ownership interest in GLA and/or RSL-LA, as applicable, of greater than fifty percent (50%). (b) Notwithstanding paragraph (a), Restricted Activities shall exclude: (i) Traditional Media Services; (ii) IP (i.e., Internet protocol) telephony services; and (iii) AOL's GlobalNet(TM)international roaming communications network services. (c) For the avoidance of doubt and subject to the definition of Access Services in Section 4.1(a) above as it relates to PC Access Services, TV Access Services and Wireless Access Services, AOL, directly or together with a third party, shall have the right to offer in the Territory: (i) Spanish or Portuguese language AOL-branded and CompuServe-branded online or Internet services that are not Access Services to the extent provided in Section 2.9 of the AOL License; and (ii) Non-AOL-branded and non-CompuServe-branded Access Services or other services that are not PC Access Services. (d) For the avoidance of doubt, notwithstanding the termination or non-applicability of the non-competition provisions of Section 4.1(a), AOL shall have no right to engage in PC Access Services, TV Access Services or Wireless Access Services or Restricted Activities in the Territory using the AOL Marks or CIS Marks: (i) except to the extent expressly provided in this Section 4, the AOL License or the CIS License, or (ii) unless the AOL License or CIS License terminates or is amended to allow such use of the AOL Marks or CIS Marks in accordance with the express terms of the AOL License or CIS License. Section 4.2 Repurchase Upon Breach. (a) Subject to the other provisions of this Section 4.2, if a Stockholder and/or a Special Affiliate thereof violates the prohibitions of Section 4.1(a)(i) or (iii) and, if applicable, does not remedy such violation as provided in Sections 4.2(c) and (d), and such Stockholder and/or Special Affiliate fails to cure such violation and, if applicable, fails to remedy within thirty (30) Business days of receiving written notice from the AOL, if Aspen and/or Atlantis is the violating party, or Aspen or Atlantis, if AOL is the violating party, then, in addition to other remedies available herein or under law or equity, if Aspen and/or Atlantis or one of its or their Special Affiliates is the breaching Person, the Company shall have the right to purchase all, but not less than all, of ODC's shares of Voting Stock in the Company (collectively, "ODC's Holdings") at their Fair Market Value, less, to the extent such damages are not reflected in the Fair Market Value, all damages arising as a result of the breach, such purchase to be effected in accordance with the procedures set forth herein and in Sections 5.3(d) and 5.4 below. If the Company elects not to purchase ODC's Holdings upon any breach by ODC or one of its Special Affiliates hereunder, then AOL shall have the right to purchase all, but not less than all, of ODC's Holdings on the same terms. If AOL or one of its Special Affiliates is the breaching Person, then ODC shall have the right to require AOL to purchase all, but not less than all, of ODC's Holdings at their Fair Market Value plus, to the extent such damages are reflected in the Fair Market Value, all damages arising as a result of the breach, such purchase to be effected in accordance in accordance with the procedures set forth herein and in Sections 5.3(d) and 5.4 below. The Company or AOL, as applicable, shall purchase such ODC Holdings in cash, provided that, (i) if the Company has elected to purchase ODC's Holdings, the Company may effect such purchase by delivery of its promissory note, in the full amount of the purchase price therefor, payable over three years with interest at the Default Rate, compounded annually, and (ii) if AOL is the purchasing party, then at the option of the non-breaching party, AOL shall purchase ODC's Holdings in cash or in freely tradable shares of AOL-Time Warner, Inc. common stock (the "AOL Stock") in installments over a three (3)-year period, with interest at the Default Rate compounded annually (the "Installment Payments"), subject to the Liquidity Requirements as set forth in paragraph (f) below. If Installment Payments are chosen, or if the Company elects to effect its purchase of ODC's Holdings by delivery of its promissory note, then the purchase price shall be paid in equal quarterly installments of principal and interest over the applicable period, and evidenced by a promissory note in form and substance reasonably satisfactory to ODC. At ODC's election the note or Installment Payments shall be secured by ODC's Holdings being purchased. If any third party admitted as a stockholder of the Company as contemplated in Section 5.7 violates the prohibitions contained in Section 4.1(a) and does not remedy such violation as provided in Sections 4.2(c) or (d), then, in addition to other remedies available herein or under law or equity, the Company shall have the right to purchase all, but not less than all, of such third party's shares of Voting Stock in the Company at their Fair Market Value, less, to the extent such damages are not reflected in the Fair Market Value, all damages arising as a result of the breach, such purchase to be effected in accordance with the procedures set forth herein and in Sections 5.3(d) and 5.4 below. If the Company fails to exercise such right, then AOL and ODC shall have the right to purchase all or any part of such third party's shares of Voting Stock in the Company at their Fair Market Value, less to the extent such damages are not reflected in the Fair Market Value, all damages arising as a result of the breach. AOL and ODC shall each be entitled to purchase a portion of such third party's shares in proportion to the shares of Voting Stock originally sold by AOL and/or ODC to such third party equity participant, if any, or if no such shares were originally sold by AOL or ODC, in proportion to their then respective percentage ownership interests in the Voting Stock. If either AOL or ODC chooses not to so purchase any part of a third party's shares that it is permitted to buy under this Section 4.2, then the other may, at its option, purchase all of the remainder of such third party's shares. (b) If, after the Effective Date, a Stockholder and/or any of its Special Affiliates (the "Acquiring Party") intends to acquire an interest in a Person or Persons (which as a result of such acquisition would be a Special Affiliate(s)) that, directly or indirectly, as part of its or their activities would cause a Stockholder and/or any of its Special Affiliates to be engaged in Restricted Activities, then the Acquiring Party shall use its commercially reasonable efforts (subject to any applicable confidentiality obligations) to notify the other Stockholders and the Company of such intent to acquire such interest. If a Stockholder is precluded from providing the complete notice required hereunder due to a conflicting confidentiality obligation, the Stockholder must, at a minimum, notify the other Stockholders and the Company that a conflicting confidentiality obligation is preventing it from full compliance with this Section 4.2(b). (c) If, after the Effective Date, the Acquiring Party acquires an interest in a Person or Persons (which as a result of such acquisition becomes a Special Affiliate(s) of the Acquiring Party) that, directly or indirectly, engages in Restricted Activities, then the Acquiring Party shall have the option, in its sole discretion, of either: (y) divesting the Restricted Activities to the extent necessary to be in compliance with Section 4.1 within one (1) year from the date on which the Acquiring Party has acquired such an interest in Restricted Activities, or (z) offering first to the Company and, if not accepted by the Company, then to AOL, if either Aspen or Atlantis is the Acquiring Party, and to ODC, if AOL is the Acquiring Party, an opportunity to participate in the Restricted Activities or offering to contribute that part of the Person conducting Restricted Activities to the Company in exchange for payment by the Company of the fair market value thereof. If the Acquiring Party makes an offer pursuant to clause (z) above, and neither the Company nor AOL, if either Aspen or Atlantis is the Acquiring Party, or ODC, if AOL is the Acquiring Party, agrees to acquire such interest for any reason or the Company does not agree to pay for the Restricted Activities, then the Acquiring Party shall divest the Restricted Activities to the extent necessary to be in compliance with Section 4.1 within the later of: (A) one (1) year from the date on which the Acquiring Party has acquired such an interest in the applicable Person(s), or (B) six (6) months after receiving written notice rejecting the Acquiring Party's offer from both AOL, if either Aspen or Atlantis is the Acquiring Party, and ODC, if AOL is the Acquiring Party, and the Company, but, in any case, no later than eighteen (18) months after the date on which the Acquiring Party has acquired such an interest in the Person. (d) Notwithstanding any other provision of this Agreement, during the period that the non-competition provisions of Section 4.1(a) are in force, if: (i) the activities of any Stockholder or any of its Special Affiliates result in such Stockholder and/or its Special Affiliate(s) becoming a Significant Competitor providing PC Access Services (or, in the case of ODC and/or its Special Affiliates, TV Access Services or Wireless Access Services) in the Territory, or (ii) the activities of the Stockholder and its Special Affiliates result in such Stockholder or Special Affiliate together becoming an Aggregated Significant Competitor providing PC Access Services (or, in the case of ODC and/or its Special Affiliates, TV Access Services or Wireless Access Services) in the Territory, then the Stockholder and/or the Special Affiliate(s), as the case may be, shall have the option, in its or their sole discretion, of either: (y) divesting the Restricted Activity to the extent necessary to be in compliance with Section 4.1 within one (1) year from the date on which it becomes a Significant Competitor or an Aggregated Significant Competitor, as the case may be, or (z) offering first to the Company and, if not accepted by the Company, then to AOL, if either Aspen or Atlantis is engaged in the Restricted Activity, and to ODC, if AOL is engaged in the Restricted Activity, an opportunity to participate in the Restricted Activities or offering to contribute that part of the Person conducting Restricted Activities to the Company in exchange for payment by the Company of the fair market value thereof. If the Acquiring Party makes an offer pursuant to clause (z) above, and the Company does not agree to pay for the Restricted Activity for any reason or the Company or AOL or ODC, as applicable, does not agree to acquire such interest for any reason, then the Acquiring Party shall divest the Restricted Activity to the extent necessary to be in compliance with Section 4.1 within one (1) year from the date on which the applicable Person(s) became a Significant Competitor or Aggregate Significant Competitor, as the case may be. (e) Notwithstanding any other provision of this Agreement, during the period that the non-competition provisions of Section 4.1(a)(i) and (iii), as applicable, are in force, any Stockholder, either directly or through a Special Affiliate, may acquire or hold an interest in a Person providing, or otherwise participating in the provision of, PC Access Services, TV Access Services (except AOL-branded TV Access Services) and Wireless Access Services (except AOL-branded Wireless Access Services) within the Territory so long as such Person is not a Significant Competitor and such Person, together with the applicable Stockholder and its Special Affiliates, is not an Aggregated Significant Competitor. (f) The "Liquidity Requirements" shall be deemed satisfied only if AOL provides unconditional guarantees to ODC, in form and substance reasonably satisfactory to ODC, that provide reasonable assurances that ODC can sell an amount of the AOL Stock received at a price sufficient to provide the same amount of money to ODC on approximately the same time schedule that ODC would have received if AOL had chosen to make Installment Payments in cash and guarantee that if ODC cannot do so, AOL will pay the difference to ODC. ODC recognizes, however, that it may not "dump" or otherwise sell such AOL Stock in a manner that would disrupt the market for such stock, and accordingly, the parties shall mutually agree to a procedure and timetable for the most rapid liquidation of such AOL Stock that does not disrupt the market therefor. Notwithstanding the foregoing, if for any reason ODC does not sell its AOL Stock or any portion thereof within forty-five (45) days of receipt of such AOL Stock or, if later, within the timetable agreed upon, AOL cannot and does not guarantee that the AOL Stock given to ODC will be equivalent in value to the cash Installment Payments. (g) If the Company and an Acquiring Party are unable to agree on the fair market value of the part of any Person conducting Restricted Activities which such Acquiring Party is required to offer to the Company pursuant to Section 4.1(c) or 4.1(d), then either party may request an appraisal of such fair market value by delivery of such a request in writing to the other. Such appraisal shall be conducted by an investment banking firm of international standing with experience in valuations of the type of business in question reasonably acceptable to each of the Company and the Acquiring Party. If the Acquiring Party acquired the Person that is conducting the Restricted Activities pursuant to arm's length negotiations with an un-Affiliated party, then the appraisal of such investment banking firm shall be limited to determining the percentage of purchase price paid by the Acquiring Party for such Person attributable to the Restricted Activities. Otherwise, the investment banking firm may make such appraisal on whatever basis it reasonably may determine. Any such appraisal shall, absent manifest error, be binding on the Company, the Acquiring Person and the other Stockholders for all purposes under this Section 4.1. ARTICLE V RESTRICTIONS ON TRANSFERS Section 5.1 Prohibited Transfers. Except as expressly permitted in this Agreement, no Stockholder nor any of their respective Affiliates, including any direct or indirect beneficial owner or ultimate parent of any such entity (including AOL and ODC), shall, directly or indirectly, Transfer any of the right, title or interest in (i) any shares of Preferred Stock or Common Stock or (ii) any of their Affiliates which beneficially own, either directly or indirectly, any shares of Preferred Stock or Common Stock. Except for Transfers duly made in accordance with this Article V, no Transfer of Preferred Stock or Common Stock by a Stockholder shall be valid as against the Company and its stockholders and any purported transfer not so made in accordance with Article V shall be null and void and of no force or effect as against the Company and the other Stockholders. Section 5.2 Permitted Transfers. (a) Notwithstanding anything in this Agreement to the contrary, each Stockholder (or any permitted transferee under clauses (i) through (iv) below) may Transfer shares of Voting Stock owned by it and its rights under this Agreement as they relate to such transferred Voting Stock as follows: (i) All or part of the shares of Voting Stock owned by it and its rights under this Agreement to any transferee that is a Wholly Owned Affiliate or Parent Entity of a Stockholder, provided that no Restricted Transferee owns or thereafter shall own an interest in such Parent Entity, which interest, with respect to a Parent Entity, is acquired directly from such Parent Entity or from one of its Affiliates; (ii) All or part of the shares of Voting Stock owned by it and its rights under this Agreement to any transferee admitted to the Company as a third party equity holder pursuant to the provisions of Section 5.7 hereof; (iii) Up to twenty percent (20%) of the shares of Voting Stock of such Stockholder (with Aspen and Atlantis constituting a single Stockholder for purposes of this subsection) to transferees that comprise members of the Cisneros Family and/or Employees of the Stockholders or of any Wholly Owned Affiliate of such Stockholder, provided that (x) prior to the effective date of any such transfer, the prospective transferees shall enter into a voting agreement, in form and substance satisfactory to the Company and the non-transferring Stockholder, pursuant to which the transferring Stockholder shall retain all voting rights attributable to the transferred shares or (y) such transfers are of Class A Common Stock; (iv) All of the shares of Voting Stock owned by it and its rights under this Agreement if such Transfer is part of the Transfer to any party acquiring all (or substantially all) of (A) the business of AOL, or (B) the ODC Business Unit. For purposes hereof, "ODC Business Unit" means any Person or Persons that individually or collectively owns all of the equity interests of ODC and its Affiliates and the Cisneros Family in the Company and RSL-LA; and (v) All or part of the shares of Voting Stock owned by it as a result of the pledge, hypothecation or other similar financing transaction so long as (x) the transferring stockholder continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction and (y) the financial institution or other Person that is a party to any such pledge, hypothecation or other financing transaction (the "Financing Party") agrees to be bound and obligated by all of the provisions of this Agreement upon the commencement by such Financing Party of any proceedings to sell or otherwise foreclose on any shares of Voting Stock subject to any pledge, hypothecation or other financing transaction permitted hereby. In the event of any Transfer of any Company Securities other than Class A Common Stock pursuant to Sections 5.2(a)(i) through (iv), the transferee thereof (or subsequent transferee) shall be entitled to the rights and privileges set forth in this Agreement and shall be bound and obligated by the provisions of this Agreement. As a condition to any such Transfer permitted pursuant to Sections 5.2(a)(i) through (iv), each transferee that will own shares of Voting Stock (other than shares of Class A Common Stock) shall, prior to such transfer, agree in writing to be bound by all of the provisions of this Agreement and no such transferee shall be permitted to make any Transfer which the original transferor was not permitted to make. In connection with any such Transfer of any Company Securities other than Class A Common Stock pursuant to Sections 5.2(a)(i) through (iv), the transferee shall execute and deliver to the non-transferring Stockholder (with Aspen and Atlantis constituting a single Stockholder for purposes of this provision) and the Company such documents as may reasonably be requested by the non-transferring Stockholder and/or the Company to evidence the same. (b) Any Stockholder may Transfer some or all of the shares of Voting Stock owned by it to another Stockholder (it being understood that for purposes hereof, Atlantis may Transfer some or all of the shares of Voting Stock owned by it to Aspen and Aspen may Transfer some or all of the shares of Voting Stock owned by it to Atlantis). (c) Any Stockholder may Transfer some or all of the Class A Common Stock owned by it in a Public Sale. Section 5.3 Rights of First Refusal. (a) Except with respect to Transfers permitted pursuant to Section 5.2, if a Stockholder (with Aspen and Atlantis constituting as single Stockholder for purposes of this Section 5.3) wants to Transfer any shares of Voting Stock to any other Person (other than to a Restricted Transferee or pursuant to a pledge, hypothecation or other similar financing transaction in which the transferring Stockholder continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction) in a bona fide transaction, such Stockholder (the "Offeror") shall be entitled to do so provided that such Offeror first offers to sell such shares of Voting Stock to the other Stockholder (the "Offeree") at the same price and the same terms and conditions as the Offeror would receive from such other Person. The Offeror shall submit to the Company and the Offeree a written notice (the "Offer Notice") stating in reasonable detail such price or other consideration and such terms and conditions and identifying the Person and all Persons who beneficially own more than five percent (5%) of such Person, proposing to purchase the shares of Voting Stock. The Offeree shall have a period of thirty (30) days after the receipt of the Offer Notice in which to accept or reject such offer. If the Offeree elects to accept such offer, which acceptance must be for all and not part of the Voting Stock offered for sale, it shall so indicate within such thirty (30) day period by notice to the Offeror. The notice required to be given by the Offeree shall specify a date for the closing of the purchase which, subject to the expiration or early termination of any waiting period required by any Governmental Authority and the receipt of any required approvals of any Governmental Authority, shall not be more than thirty (30) days after the date of the giving of such notice. (b) If the Offeree does not exercise its right to purchase all of the shares of Voting Stock offered for sale pursuant to the provisions of this Section 5.3, the Offeror of such shares of Voting Stock shall have the right to sell to the Person identified in the Offer Notice, subject to the provisions of this Agreement, all (but not less than all) of such shares of Voting Stock on the same terms and conditions including the price or other consideration specified in the Offer Notice, free from the restrictions of Section 5.1 of this Agreement (for purposes of such specific transaction, but not for purposes of any subsequent transaction) in a bona fide transaction, for a period of ninety (90) days from the date that the Offer expires hereunder, provided that any such purchaser shall prior to such transfer, if such purchaser shall be receiving shares of Voting Stock, other than shares of Class A Common Stock, agree in writing to be bound by all of the provisions of this Agreement. At the end of such ninety (90) day period, the Offeror shall notify the Company and the Offeree in writing whether its shares of Voting Stock have been sold in a bona fide transaction during such period. To the extent not sold during such ninety (90) day period, all of such shares of Voting Stock shall again become subject to all of the restrictions and provisions of this Section 5.3. (c) If the Offeree accepts the offer set forth in the Offer Notice, the purchase price or other consideration per share of the shares of Voting Stock purchased by the Offeree shall be the price or other consideration per share offered to be paid by the prospective transferee described in the Offer Notice, which price shall be paid in cash and/or such other consideration, at the election of the Offeree. (d) If the Offeree accepts the offer set forth in the Offer Notice, the closing of the purchase shall take place at the principal office of the Company or such other location as shall be mutually agreeable to the Offeror and Offeree, and the purchase price shall be paid at the closing by wire transfer of immediately available funds or in such other appropriate form if for consideration other than cash. At the closing, the Offeror shall deliver to the Offeree the certificates evidencing the shares of Voting Stock to be transferred, duly endorsed and in negotiable form as well as the items listed in Section 5.4. Section 5.4 Closing Deliveries. The Offeror at a closing under this Article V shall deliver to the Offeree the following: (a) A duly executed stock power, "Deed of Transfer" or other appropriate instrument conveying to the Offeree the shares of Voting Stock being purchased by the Offeree, free and clear of any Encumbrances, except those in this Agreement which are expressly assumed. If less than all of the shares of Voting Stock evidenced by a stock certificate are being purchased, the Company shall, upon receipt of such duly endorsed stock certificate, issue to the Offeree a stock certificate evidencing the shares being purchased and issue to the Offeror a stock certificate evidencing the number of shares not being purchased. (b) A statement from the Offeror that: (i) except as set forth therein, the Offeror has no claim against the Company in respect of the shares of Voting Stock being transferred, including for any unpaid dividends; and (ii) the Offeror shall perform any of its obligations under this Agreement that shall continue to be applicable to the Offeror after such transfer of shares or shall guarantee any such obligations as may be assumed by the Offeree, unless such guarantee is not then required by the other parties to this Agreement. Section 5.5 Direct Comprehensive Competitor. Before ODC or any of its Affiliates may Transfer any shares of Voting Stock offered by ODC or any of such Affiliates pursuant to this Article V to a "Direct Comprehensive Competitor" (as defined below) of AOL, ODC shall provide AOL with commercially reasonable notice of its intentions and the terms of the contemplated transaction. Before ODC or any of its Affiliates may consummate any transaction with such Direct Comprehensive Competitor, AOL shall have a right, exercisable within thirty (30) days after written notice from ODC, to purchase such shares on the same terms as those offered by ODC and/or its Affiliates to the Direct Comprehensive Competitor. If AOL does not accept this opportunity to purchase ODC's and/or its Affiliates' shares and ODC and/or its Affiliates wishes to sell such shares to the Direct Comprehensive Competitor at a price lower than the price offered to AOL, or on material terms which, when taken as a whole, are less favorable to ODC and/or its Affiliates than those offered to AOL (a "Worse Offer"), ODC shall notify AOL of its intentions and the terms of the Worse Offer. Before ODC and/or its Affiliates may consummate any Worse Offer transaction with such Direct Comprehensive Competitor, AOL shall have a right to purchase ODC's and its Affiliates' shares on the same terms as such Worse Offer, exercisable within thirty (30) days of written notice from ODC. For purposes of this Section 5.5, a "Direct Comprehensive Competitor" shall mean a Person or entity which owns or controls, directly or indirectly, a multinational business that includes the provision of comprehensive horizontal (i.e., across multiple, diverse subject areas) Interactive Services containing Content of general interest as may be organized under such subject areas as news, sports, and finance, including, by way of example, (**text removed here**). Section 5.6 Purchase of the ODC Holdings; Installment Payments. ODC hereby agrees that AOL and/or the Company, as applicable, may designate a Subsidiary or a third party as the acquirer of all or any of ODC's shares of Voting Stock it may be entitled to purchase hereunder, provided that AOL and/or the Company, as applicable, unconditionally guarantees the required purchase payments to ODC. Section 5.7 Third-Party Equity Participants. AOL, ODC and the Company shall evaluate the benefits of admitting one or more significant third-party equity stockholders to the Company, and (except as expressly set forth in this Agreement) any such admission of a significant third-party equity participant shall be mutually agreed upon by AOL and ODC in accordance with this Section 5.7 and, if such admission is to be effected in whole or in part by sale of any Company Securities by the Company, submitted for approval of the Special Committee and the Board in accordance with the provisions of the Certificate of Incorporation: (a) Either AOL or ODC may identify one or more Strategic Partners, and may enter into discussions with one or more such Strategic Partners with a view to offering to such Strategic Partners an opportunity to participate in the equity ownership of the Company. Before AOL or ODC commences negotiations (e.g., making a formal proposal regarding a significant deal point) it shall provide notice to the other and the Company which shall have the right to participate in any and all such negotiations. Either AOL or ODC may, however, direct that such negotiations not commence and such third party not be considered for an interest. (b) Disproportionate Dilution; Call Option. (i) Any such admission of a Strategic Partner to the Company shall be accomplished in such a manner that the respective Voting Stock holdings of ODC and AOL in the Company are diluted on a two to one (2 to 1) basis until the aggregate number of shares of Voting Stock owned by ODC is reduced to twenty-five percent (25%) of the aggregate number of shares of Voting Stock then outstanding as adjusted to reflect any stock splits, reverse stock splits, stock dividends, stock issuances and similar capital transactions, and, thereafter the respective Voting Stock holdings of ODC and AOL, respectively, shall be diluted on a one and one-half to one (1.5 to 1) basis (collectively, the "Disproportionate Dilution"). Strategic Partners may be admitted at any entity level or levels (e.g., to the Company or any other Subsidiary) and in any manner (e.g., by the issuance of shares by the Company and/or the sale of shares by AOL and/or ODC), provided, however, that the net effect of all transactions admitting Strategic Partners does not dilute ODC's overall (direct or indirect, whether through the Company or otherwise) percentage ownership of the Voting Stock of the Company relative to AOL's percentage ownership more than on a 2 to 1 or 1.5 to 1 basis, as applicable ("Maximum Disproportionate Dilution"). (ii) ODC hereby grants the Company and AOL an option (the "Call Option") to purchase from ODC, and ODC shall be obligated to sell to the Company and AOL, as applicable, such number of shares of Voting Stock then owned by ODC as may be required to effect the Disproportionate Dilution. The Company and/or AOL, as applicable, may exercise the Call Option by written notice (the "Purchase Notice") to ODC, which Purchase Notice must be delivered to ODC within thirty (30) days after the admission of a Strategic Partner to the Company. The price at which the Call Option shall be exercised shall be determined pursuant to subsection (A) below, and the date and place of transfer shall be determined pursuant to subsection (B) below. (A) Price Determination. The purchase price per share at which the Call Option shall be exercised shall be equal to the Fair Market Value thereof as of the date of delivery of the Purchase Notice. (B) Date and Place of Transfer. The purchase and sale of the shares owned by ODC to the Company and/or AOL, as applicable, pursuant to subsection (b)(ii) above shall take place at the principal place of business of the Company (unless otherwise agreed by AOL and ODC), on a date specified by the Company and/or AOL, as applicable, but no later than thirty (30) days after the Purchase Notice has been sent pursuant to subsection (b)(ii), unless otherwise agreed by AOL and ODC (the "Call Option Closing"). At the Call Option Closing, the Company and/or AOL, as applicable, shall tender and ODC shall accept payment of the purchase price by certified or bank check or wire transfer, and ODC shall deliver to the Company and/or AOL, as applicable, in exchange therefor the certificate(s) for the shares of Voting Stock being acquired pursuant to the Purchase Notice, accompanied by duly executed instruments of transfer and the other documents required to be delivered pursuant to Section 5.4 hereof. (c) If for any reason the admission of a Strategic Partner results in an aggregate dilution of ODC's relative percentage ownership in the Company greater than the Maximum Disproportionate Dilution, the Stockholders and the Company shall take all actions necessary to ensure that such excessive dilution is eliminated by an adjustment in the form of: (i) the sale or transfer from AOL and/or the Company to ODC of shares of Voting Stock in the Company, and/or (ii) any other measure reasonably agreed upon by the Stockholders, such that after such adjustment the resulting dilution of ODC's ownership interest does not exceed the Maximum Disproportionate Dilution. (d) If a Strategic Partner is admitted to the Company, and the manner of effecting the disproportionate dilution is other than pursuant to the Call Option, ODC shall be compensated for any sale or other dilution of ODC's Voting Stock ownership directly or indirectly in an amount equal to the Fair Market Value thereof. (e) Any admission of a Non-Strategic Partner to the Company shall dilute AOL and ODC pro rata. (f) The method of admitting Strategic Partners and Non-Strategic Partners (e.g., whether to effect such admission by the issuance of shares to such new stockholder and/or the sale of shares by AOL and/or ODC), shall be determined by the Stockholders and, if such method involves the issuance of any Company Securities or other equity securities of the Company, submitted to the Special Committee and the Board for their approval in accordance with the Certificate of Incorporation. (g) If the shares of Voting Stock held by AOL and/or ODC shall have been reduced by reason of a sale of a portion of its or their shares of Voting Stock to a Strategic Partner or Non-Strategic Partner as contemplated in this Section 5.7, and such Strategic Partner or Non-Strategic Partner thereafter wants to, or is required to, sell all or a portion of such shares of Voting Stock, AOL and ODC shall cooperate with each other and such Strategic Partner or Non-Strategic Partner, as applicable, so that each of AOL and ODC shall have the right and opportunity to repurchase any such shares of Voting Stock in proportion to the shares of Voting Stock originally sold by AOL and/or ODC to such Strategic Partner or Non-Strategic Partner. If AOL or ODC chooses not to purchase any part of a third-party's shares of Voting Stock which it is permitted to buy under this Section 5.7(g), then the other or, if it elects not to purchase all of such shares, the Company, may purchase at its option all of the remainder of such third-party's shares of Voting Stock. ARTICLE VI REGISTRATION RIGHTS Section 6.1 Registration Rights. The shares of Class A Common Stock that are issued to the Stockholders by the Company upon conversion of Class B Common Stock or Class C Common Stock or otherwise (including, without limitation, upon conversion of any Series B Preferred Stock received by AOL upon exercise by AOL of the Warrant in whole or in part) shall have the registration rights set forth in the Amended and Restated Registration Rights Agreement, dated as of March 30, 2001, by and among the parties (the "Registration Rights Agreement"). The parties agree that, subject to the advance notice requirements set forth in the Certificate of Incorporation and the Certificate of Designations any such conversion, exercise or exchange shall, except as otherwise expressly set forth herein or in the Certificate of Incorporation or Certificate of Designations occur, at the option of the exchanging or converting Stockholder, contemporaneously with the registration of the Class A Common Stock to be received, or the consummation of the sale of such Class A Common Stock pursuant to such registration, or at such other time as such Stockholder shall request in writing. ARTICLE VII ODC NON-MONETARY OBLIGATIONS Section 7.1 ODC Non-Monetary Contributions. As an integral part of ODC's contribution to the Company, ODC or its Affiliates shall provide to the Company, for the benefit of the Company and its Subsidiaries, the non-monetary contributions and services set forth on Schedule 7.1 hereof relating to such Non-Monetary Contributions as may be in effect from time to time. Upon the termination of this Agreement, the rights and obligations arising under any and all such side agreements in effect at the time of termination shall continue in full force and effect until the expiration or termination of such side agreements in accordance with their terms and neither the Company, nor AOL nor ODC shall be obligated to enter into any additional side agreements following the date of termination of this Agreement. ARTICLE VIII OTHER AGREEMENTS; LEGENDS Section 8.1 Legends. As long as this Agreement shall remain in full force and effect, there shall be inscribed upon each certificate of Voting Stock held by a Stockholder the following legends: THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED, HYPOTHECATED OR IN ANY WAY DISPOSED OF OR ENCUMBERED EXCEPT PURSUANT TO THE TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDERS' AGREEMENT, DATED AS OF AUGUST 7, 2000, AND ANY AMENDMENTS THERETO, BETWEEN AMERICA ONLINE LATIN AMERICA, INC., AMERICA ONLINE, INC. AND RIVERVIEW MEDIA CORP., A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE COMPANY. THE HOLDER AND THE OWNER HEREOF IS SUBJECT TO THE OBLIGATIONS THEREIN SET FORTH AND CONTAINED AND ANY SUCH DISPOSITION OR ENCUMBRANCE IN VIOLATION OF SAID STOCKHOLDERS' AGREEMENT SHALL BE NULL AND VOID. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, ENCUMBERED, TRANSFERRED, GRANTED AN OPTION WITH RESPECT TO OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT. Notwithstanding the foregoing, for so long as this Agreement shall remain in full force and effect, there shall be inscribed on each certificate of Voting Stock issued to a Stockholder after March 30, 2001 the following legend in lieu of the first legend required pursuant to the foregoing: THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, ASSIGNED, HYPOTHECATED OR IN ANY WAY DISPOSED OF OR ENCUMBERED EXCEPT PURSUANT TO THE TERMS AND CONDITIONS OF A CERTAIN AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, DATED AS OF MARCH 30, 2001, AND ANY AMENDMENTS THERETO, BETWEEN AMERICA ONLINE LATIN AMERICA, INC., AMERICA ONLINE, INC., ASPEN INVESTMENTS LLC, AND ATLANTIS INVESTMENTS LLC, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE COMPANY. THE HOLDER AND THE OWNER HEREOF IS SUBJECT TO THE OBLIGATIONS THEREIN SET FORTH AND CONTAINED AND ANY SUCH DISPOSITION OR ENCUMBRANCE IN VIOLATION OF SAID STOCKHOLDERS' AGREEMENT SHALL BE NULL AND VOID. Section 8.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANOTHER (OR TO ANY AFFILIATE OF ANOTHER) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, WHETHER SOUNDING IN TORT, CONTRACT OR ANY OTHER FORM OF ACTION, EVEN IF THE PARTY AGAINST WHOM SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. ARTICLE IX TERM AND TERMINATION Section 9.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate (i) by mutual agreement of the Parties in writing, (ii) when the Stockholders have ceased to hold any shares of Voting Stock in the Company, (iii) by termination pursuant to the provisions of Section 9.2, or (iv) on June 30, 2048, whichever occurs first. Section 9.2 Termination. AOL, on the one hand, and ODC, on the other hand, at its and their sole discretion, may terminate this Agreement by delivering notice of termination and the basis therefor to the other and the Company, at such time as the other ceases to hold a direct or indirect ownership interest in Voting Stock greater than 10% percent of the number of shares of Voting Stock at any time outstanding (or such lower percentage resulting solely from admission of third-party equity participants pursuant to Section 5.7). ARTICLE X STANDSTILL PROVISIONS; INDEMNIFICATION Section 10.1 Limitations on Holders' Ownership. Except for purchases of Company Securities made in accordance with this Article X, each Holder agrees that until December 15, 2003 it will not, nor will it permit any of its Affiliates other than the Company to directly or indirectly, acquire, offer or propose to any of the Company's stockholders or any third party to acquire, solicit an offer to sell or agree to acquire, by purchase, by gift, by joining a partnership, limited partnership, syndicate or other "group" (as such term is used in Section 13(d)(3) of the Exchange Act), any Company Securities, except as follows: (a) a Holder may acquire Company Securities as consideration for such Holder's sale of an asset, property or right to the Company; (b) a Holder may acquire Company Securities in connection with such Holder's making of a tender offer or exchange offer for not less than 100% of the shares of Company Securities then outstanding at a price approved by the disinterested members of the Board of Directors of the Company and based upon a fairness opinion delivered to the Board of Directors of the Company by a nationally recognized investment banking firm; (c) the Holders shall have the right to acquire in the aggregate shares of Class A Common Stock up to an amount equal to five percent (5%) of the aggregate number of shares of Class A Common Stock outstanding on the Effective Date, it being understood that for purposes of this subsection (c) only, Aspen and Atlantis shall be treated as one Holder and shall collectively be limited to acquire in the aggregate no more than up to an amount equal to five percent (5%) of the aggregate number of shares of Class A Common Stock outstanding on the Effective Date; (d) AOL may exercise the Warrant; (e) pursuant to the rights of first refusal granted pursuant to the provisions of Section 10.1 of the Amended and Restated Registration Rights and Stockholders Agreement, dated as of March 30, 2001, by and between the Company, Banco Itau, S.A. and the other parties named therein; and (f) as specifically approved by the Board. Notwithstanding the foregoing, nothing in this Section 10.1 shall prohibit any Holder or Affiliate of such Holder from acquiring any Company Securities as a result of any stock dividend, stock split, combination, reorganization, reclassification or similar event affecting the Company's capital structure. SECTION 10.2 Indemnification. (a) If, and to the extent that, the Company, any stockholder of the Company or any other Person brings any Action against AOL or ODC or any of their Affiliates or Subsidiaries (or any of their officers, directors, agents, shareholders, members, partners, Affiliates or Subsidiaries) seeking any Damages or injunctive or other equitable relief based on, arising out of or relating to any breach or alleged breach of any fiduciary or other duty based on any action or inaction which is permitted by the provisions of Article THIRD of the Certificate of Incorporation, or which is otherwise taken in reliance upon the provisions of said Article THIRD, the Company shall, to the fullest extent permitted by law, indemnify and hold such Persons harmless from and against all Damages arising out of or in connection with any such Action. The right to indemnification conferred herein shall include the right to be paid by the Company the expenses (including attorneys', accountants', experts' and other professionals' fees, costs and expenses) incurred in defending any such Action in advance of its final disposition (hereinafter, an "advancement of expenses"); provided, however, that if, but only if and then only to the extent, the GCL requires, an advancement of expenses incurred by an indemnitee hereunder shall be made only upon delivery to the Company of an undertaking (hereinafter, an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter, a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Article THIRD or otherwise. The rights to indemnification and to the advancement of expenses conferred herein shall be contract rights and, as such, shall inure to the benefit of the indemnitee's successors, assigns, heirs, executors and administrators. (b) If a claim for indemnification under this Section 10.2 is not paid in full by the Company within sixty (60) days after a written claim has been received by the Company, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses only upon a final adjudication that, the indemnitee has not met the applicable standard for indemnification, if any, set forth in the GCL. Neither the failure of the Company (including the Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth herein or in the GCL, nor an actual determination by the Company (including its directors, or a committee thereof, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section 10.2 or otherwise, shall be on the Company. (c) The rights to indemnification and to the advancement of expenses conferred in this Section 10.2 shall not be exclusive of any other right which any person may have or hereafter acquire by any statute, the Certificate of Incorporation, the Company's By-laws, or any agreement, vote of stockholders or disinterested directors or otherwise. ARTICLE XI MISCELLANEOUS Section 11.1 Confidential Information. At all times following the date hereof, each Party shall keep strictly confidential and not disclose, use, divulge, publish or otherwise reveal, directly or through another Person: (a) information that a Party indicates to another Party is, or that such other Party reasonably should know is, confidential, non-public information of a Party or an Affiliate of a Party which was disclosed pursuant to the AOL License and AOL OLS Agreement, or (b) any information that a Party indicates to another Party is, or that such other Party reasonably should know is, confidential, non-public information: (i) relating to the business of any other Party and obtained as a result of the preparation and negotiation of this Agreement, the performance by the Parties of their obligations hereunder, or the joint conduct by the Parties of activities pursuant to this Agreement, or (ii) relating to the business of any Subsidiary of the Company; in each case including, but not limited to, documents and/or information regarding customers, costs, profits, markets, sales, products, product development, key personnel, pricing policies, operational methods, technology, know-how, technical processes, formulae, or plans for future development of or concerning such other Party or Subsidiary (collectively, "Confidential Information"), except as may be necessary for the directors, employees, agents or consultants of it and its Affiliates to perform their respective obligations under this Agreement or conduct of the Business, in connection with filings with Governmental Bodies as required under applicable law, including, in particular, the filing of this Agreement and the Registration Rights Agreement with the Commission in connection with the initial public offering of the Class A Common Stock; provided that, except for the filing of this Agreement and the Registration Rights Agreement with the Commission, no Party shall make any disclosure required under applicable law before providing the applicable Party with a reasonable opportunity to seek a protective order. Each Party shall cause any Persons receiving Confidential Information in accordance with the terms hereof to retain such Confidential Information in strict confidence. Upon termination or expiration of this Agreement, each Party shall return to the other Parties or destroy, as the other Parties may direct in their sole discretion, all memoranda, notes, records, reports and other documents (including all copies thereof) relating to the Confidential Information of the other Parties and their Subsidiaries which such Party may then possess or have under its control. Each Party shall certify in writing to another Party within ten (10) Business Days of receiving instructions from such other Party regarding the return or destruction of such materials of such other Parties that all such materials have been returned or destroyed as such other Party has directed. If no instruction with respect to the return or destruction of such materials is provided to a Party within ten (10) Business Days of termination or expiration, such Party shall promptly destroy such material. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (x) information which was already otherwise known to the recipient at the time of its receipt in connection with this Agreement, (y) information which is or becomes freely and generally available to the public through no wrongful act of the recipient or (z) information which is rightfully received by the recipient from a third party legally entitled to disclose such information without breach by the recipient of this Agreement. In the event of any breach of this Section 11.1, a non-breaching Party shall have the right, in addition to any other remedy available at law or in equity, to (a) pursue its claim either individually or through the Company, as such non-breaching Party shall in its sole discretion determine, and (b) demand the immediate dismissal of all personnel actively or passively participating in such breach. Section 11.2 Governing Law. This Agreement, and the rights and liabilities of the Parties hereunder, shall be governed by the substantive laws of the State of Delaware, USA without giving effect to its rules relating to conflict of laws. To the extent otherwise applicable, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the construction or interpretation of this Agreement. Each Party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for all disputes arising under or related to this Agreement, which are subject to litigation hereunder, and to service of process in any jurisdiction in any such action by means of notice delivered pursuant to Section 11.6 hereof; provided, however to permit a Party either to enforce a judgment or to seek injunctive relief, each Party also irrevocably consents to the jurisdiction of the courts in the place where such judgment enforcement or injunctive relief is sought. Each Party waives any objection it otherwise may have to the personal jurisdiction and venue of the courts designated in this Section 11.2. Notwithstanding the foregoing, for so long as a party is an entity organized under the laws of the State of Delaware, injunctive relief may be sought against that party only in the State of Delaware. Section 11.3 Entire Agreement. Except for the agreements specifically referred to in this Agreement, this Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements (including, in particular, the Original Agreement and the Joint Venture Agreement, dated as of December 15, 1998, by and among Federal Communications, S.A., AOL, Pan Latin Interactive Ventures C.V., a limited partnership organized under the laws of the Netherlands, and AOL Latin America), understandings, negotiations and discussions, whether oral or written, of the Parties with respect to the subject matter hereof. All exhibits referenced herein and attached to this Agreement are incorporated hereby and shall be treated as if set forth herein. No amendment, supplement, modification, waiver or termination of this Agreement shall be implied or be binding unless executed in writing by the Party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall waiver constitute a continuing waiver unless otherwise expressly therein provided. Section 11.4 Assignment. All of the terms and provisions of this Agreement by or for the benefit of the Parties shall be binding upon and inure to the benefit their successors and permitted assigns. The rights and obligations provided under this Agreement may not be assigned, except in accordance with the provisions of Section 5.2. Except as expressly provided herein, nothing herein is intended to confer upon any Person, other than the Parties and their permitted successors, and permitted assigns as provided herein, any rights or remedies under or by reason of this Agreement. Section 11.5 Survival. Sections 7.1, 8.2, 10.2 and 11.1 shall survive expiration or termination of this Agreement for any reason, to the extent set forth in or as necessary to give effect to the applicable provision. Section 11.6 Notices. All notices, requests, demands and other communications hereunder shall be in writing in English and shall be deemed to have been duly given (except as may otherwise be specifically provided herein to the contrary): (i) if delivered by hand to the Party to whom said notice or other communication shall have been directed, upon such receipt, (ii) if mailed by certified or registered mail with postage prepaid, return receipt requested, on the seventh Business Day after mailing, (iii) if transmitted by telefax, on the date of transmission, with such transmittal followed by delivery of a confirmation copy via one of the other methods set out herein, or (iv) if delivered by electronic mail, on the delivery date, with such transmittal followed by delivery of a confirmation copy via one of the other methods set out herein. All notices shall be addressed as set forth below or to any other address such Party shall notify to the other Party in accordance with this Section: If to AOL: America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323, USA Attn: President, AOL International Fax No.: (703) 265-2502 with a copy to: America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323, USA Attn: General Counsel Fax No.: (703) 265-3992 If to the Company: America Online Latin America, Inc. 6600 N. Andrews Avenue, Suite 500 Fort Lauderdale, FL 33309, USA Attn: Chief Executive Officer Fax No.: (954) 233-1801 with a copy to: America Online Latin America, Inc. 6600 N. Andrews Avenue, Suite 500 Fort Lauderdale, FL 33309, USA Attn: General Counsel Fax No.: (954) 233-1805 If to Aspen: Aspen Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134, USA Attn: President Fax No.: (305) 441-2880 with a copy to: Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134, USA Attn: General Counsel Fax No.: (305) 447-1389 If to Atlantis: Atlantis Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134, USA Attn: President Fax No.: (305) 441-2880 with a copy to: Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134, USA Attn: General Counsel Fax No.: (305) 447-1389 If to any other Holder: at such address and facsimile number as such Holder shall have furnished the Company in writing, with a copy to AOL and ODC. Section 11.7 Counterparts; Facsimiles. This Agreement and each of the exhibits attached hereto may be executed and delivered in one or more counterparts, each of which shall be deemed to be an original, and all of which when taken together shall constitute one and the same instrument and shall become effective when copies hereof, bearing the signatures of each of the Parties, shall have been received by the Company, ODC and AOL. Facsimile signatures to this Agreement and each of the exhibits attached hereto shall be effective if promptly followed by the original signed Agreement or exhibit, as the case may be. Section 11.8 Expenses. Except as otherwise expressly provided in the Stock Purchase Agreement, each of the Parties shall pay all of its own legal and other fees and expenses incurred in connection with this Agreement, the transactions contemplated hereby, and the negotiations leading to the same. Section 11.9 Further Assurances. Each Party shall perform all other acts and execute and deliver all other documents as may be necessary or appropriate to carry out the purposes and intent of this Agreement, as reasonably requested by the other Parties. Section 11.10 Construction. The terms and provisions of this Agreement and the wording used herein shall in all cases be interpreted and construed simply in accordance with their fair meanings and not strictly for or against any Party hereto. The captions at the headings of each Section of this Agreement are for convenience of reference only, and are not intended or to be used or applied to describe, interpret, construe, define or limit the scope, extent, intent or operation of this Agreement or of any term or provision hereof. Section 11.11 Severability. If any provision of this Agreement shall be held to be incomplete, illegal, invalid or unenforceable, or if it becomes necessary to amend the Agreement in order to comply with an administrative or governmental order, the remaining provisions of the Agreement shall stay in force and the unenforceable, void or incomplete provision shall be replaced by a valid provision or amendment reflecting the economic and business objectives of the original Agreement as best as possible. Section 11.12 Joint and Several Liability. Notwithstanding anything contained herein to the contrary, Aspen and Atlantis shall be jointly and severally liable for each other's obligations and liabilities hereunder. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written. AMERICA ONLINE LATIN AMERICA, INC. By: Name: Title: AMERICA ONLINE, INC. By: Name: Title: ASPEN INVESTMENTS LLC By: Name: Title: ATLANTIS INVESTMENTS LLC By: Name: Title: SCHEDULE 7.1 NON-MONETARY CONTRIBUTIONS AND SERVICES OF ODC ODC further agrees that, upon the request of the Company, ODC and its Affiliates will provide the services set forth in Section II of this Schedule 7.1 at ODC's or its Affiliates' cost. ODC further agrees that, upon the request of the Company, with respect to services set forth in Section III of this Schedule 7.1 that are provided by ODC or its Affiliates, ODC shall provide such services at ODC MFN Rates. "ODC MFN Rates" shall mean rates at least as favorable as rates charged by ODC or its Affiliates at such time to any Person other than ODC Seventy-Five Percent Affiliates, if any, for substantially similar services, or if ODC or its Affiliates do not provide substantially similar services to such other Persons, favorable rates consistent with the intent of this Schedule 7.1. "ODC Seventy-Five Percent Affiliate" means any Person in which Ricardo Cisneros and/or Gustavo Cisneros and/or their lineal descendants own, directly or indirectly, individually or collectively, through any other Person or Persons, at least seventy-five percent (75%) of the equity interests. Upon the request of the Company, with respect to services set forth in Section III of this Schedule 7.1 that are provided by entities in which the Cisneros Family has an equity interest that are not Affiliates of ODC, ODC shall use its best commercially reasonable efforts to obtain for the benefit of the Company such services at rates as favorable as those provided to ODC and its Affiliates other than ODC Seventy-Five Percent Affiliates, or, if such services are not provided to ODC and such Affiliates, at favorable rates consistent with the intent of this Schedule 7.1. Upon the request of the Company, ODC will use best commercially reasonable efforts to obtain for the benefit of the Company services provided to ODC and its Affiliates by third parties in which the Cisneros Family does not have any equity interest on terms as favorable as the terms extended by such third parties to ODC and its Affiliates other than ODC Seventy-Five Percent Affiliates, and if such third parties do not provide such services to ODC and such Affiliates, at favorable rates consistent with the intent of this letter agreement and Section 7.1 of the Stockholders Agreement. With respect to any services obtained from entities in which the Cisneros Family has an equity interest that are not Affiliates of ODC and third parties in which the Cisneros Family does not have any equity interest, in addition to the rates set forth above payable to such other entities, the Company shall pay to ODC all reasonable out-of-pocket costs incurred by ODC and its Affiliates in obtaining such services for the benefit of the Company. In addition to the services set forth in Sections I, II and III of this Schedule 7.1 ODC will use best commercially reasonable efforts to obtain from Univision for the benefit of the AOL-US Service, unoccupied advertising air time at Univision's most favored rates for comparable volumes of air time, until the Company has purchased $2,000,000 worth of such advertising. For purposes hereof, "AOL-US Service" shall mean the principal AOL Service provided by AOL to United States residents on the date hereof, as such service shall be modified from time to time, and "AOL Services" shall mean the Interactive Services that are PC Access Services provided worldwide, including the AOL-US Service and any other international AOL Services, under the brand names America Online(TM) and/or AOL(TM) existing as of the date hereof or in the future and modified from time to time. With respect to any service provided by ODC or its Affiliates to the Company or obtained for the benefit of the Company from other entities, a ten percent (10%) management fee will be charged to the Company where there is dedicated management involved in providing or obtaining such services for the Company. Notwithstanding anything contained herein, (i) nothing in this Schedule 7.1 shall obligate the Company to purchase services from ODC and/or its Affiliates, and (ii) any agreements for services provided hereunder where the Company is to pay ODC and/or its Affiliates, as the case may be, shall be subject to the Company's and AOL's approval as provided in Article FIFTH, Clause (c) of the Certificate of Incorporation. SECTION I. CONTRIBUTIONS PROVIDED AT NO CHARGE: o Local market intelligence o Leverage existing relationships and contacts (see Attachment 1) o Facilitate appropriate high level in-country contacts with governmental and regulatory officials to further the Company business in the Territory SECTION II. SERVICES PROVIDED AT COST*: o Legal and regulatory advice o Tax services o In-market research o Financial and administrative services o Marketing and advertising services o Public relations * Plus a nominal management fee of 10% where there is dedicated management. SECTION III. SERVICES PROVIDED OR OBTAINED AT MOST FAVORED OR FAVORABLE RATES*: (* Plus ODC reasonable, out-of-pocket costs in obtaining services and management fee where there is dedicated management.) o ADVERTISING & PROMOTION: Advertising and promotion at most favored rates applicable to comparable volumes of air time on ODC affiliated television networks, including unoccupied air time on Venevision, Chilevision, Caracol, Rock & Pop and Caribbean Communications Network. Use of available vehicles for cross-promotion of services between media properties and the Company, including cross-promotion via references to the Company Interactive Services on television programs. For example: >> ODC will make best commercially reasonable efforts to obtain from Galaxy Latin America, unoccupied advertising space to promote the Company in its programming line up. In addition, ODC will make best commercially reasonable efforts to obtain rights from GLA to promote the Company service in DIRECTV's electronic programming grid. >> ODC will also make best commercially reasonable efforts to obtain product placement in country specific programming through its affiliated programming properties in Latin America, including the channels of the Cisneros Television group, Clase, I-Sat, Space, Infinito, Uniseries, and Jupiter. >> ODC will provide the Company with cross promotion and advertising in Venevision.com, the web site of Venevision. >> ODC will make best commercially reasonable efforts to obtain from Imagen Satelital, promotion through its affiliated channels, with the Company as its exclusive online service. >> ODC will make its best commercially reasonable efforts to obtain from Panamco marketing, promotion and distribution in connection with Coca-Cola products in the Territory. o ELECTRONIC PROGRAMMING: Rights to develop online content based on traditional content developed by ODC's controlled programming properties. To the extent the rights are available from companies other than ODC's controlled properties, ODC shall use best commercially reasonable efforts to obtain such rights for the Company. For example: >> Create virtual electronic environments using the characters and themes of Venevision's children and teen-ager programs; >> Reasonable commercial efforts to obtain rights to develop virtual electronic environments based on the characters developed by non-controlled affiliates of ODC (i.e. Locomotion, Space, I-Sat, Space, Infinito, Uniseries, Chilevision.) >> Venevision will make best commercially reasonable efforts to arrange for its exclusive celebrities to take part periodically in the service's chat rooms, provided that these stars participate from their home base in these chat rooms. o ACCESS TO CUSTOMER DATABASES: Subject to applicable laws, access to customer databases of affiliate companies. For example: >> ODC will make best commercially reasonable efforts to obtain from RSLCOM Latin America and GLA access to their subscriber databases for the purpose of mailing the AOL client software to the subscribers of such services. o DISTRIBUTION OUTLETS: Access to ODC's distribution outlets for the distribution of the Company software. For example: >> GLA has distribution agreements with numerous outlets throughout Latin America. ODC will use its best commercially reasonable efforts to secure distribution of software through such outlets. IV. BUNDLING/MARKETING AGREEMENTS; COMMERCE AGREEMENTS o ODC may negotiate to obtain bundling and other marketing and subscriber acquisition agreements for the benefit of the Company ("Bundling/Marketing Agreements"). the Company shall pay ODC a royalty for each Subscriber registration that results from such Bundling/Marketing Agreements ("Bounty"). The amount of each Bounty under each Bundling/Marketing Agreement shall be mutually agreed upon by ODC and the Company, and subject to the approval of the Company and AOL as set forth in Article FIFTH, Clause (c) of the Certificate of Incorporation. o ODC may negotiate to obtain advertising and/or electronic commerce agreements with respect to the Company Interactive Services for the benefit of the Company if and as approved by the Company. ("Commerce Agreements"). the Company shall pay ODC a royalty for each Commerce Extension ("Commission"). The amount of the Commission under each Commerce Agreement shall be no less than fifteen percent (15%). Attachment 1 to Schedule 7.1 Existing Relationships as of August 7, 2000 - ------------------------ -------------------------------------------- ---------------------------- ------------------------- NAME OF COMPANY NATURE OF BUSINESS AREA OF INFLUENCE % OWN - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 1. Venevision Open TV network Venezuela (**text removed here**) Producer of Spanish Language programming in South America - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 2. Pueblo Xtra Chain of supermarkets in the Caribbean Puerto Rico (**text removed here**) International Chain of Blockbuster video stores in the US Virgin Islands Caribbean (approx. 30) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 3. Vtel Distributors of wireless commu-nications Venezuela (**text removed here**) devices from Motorola and other manufacturers - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 4. AmericaTel Provider of nationwide trunking services Venezuela (**text removed here**) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5. Ibero American Broadcasting private equity fund in Latin Currently in: (**text removed here**) Media Partners America Argentina, Chile, Co-lombia, Portugal Plans for continued expansion in Latin America - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5(a) Cisneros TV Group Distributor of original and third-party Regional (**text removed here**) programming for subscription-based TV services (CATV and DTH). - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5(b) Chilevision Open TV network Chile (**text removed here**) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5(c) Imagen Satelital Distributor of original and third-party Regional (**text removed here**) programming for subscription-based TV Strongest in Latin services (CATV and DTH) America's Southern Cone (Argentina, Chile and Brazil) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5(d) Rock & Pop All music cable network Chile (**text removed here**) Owner and operator of three radios stations - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5(e) Caribbean Open TV Network Trinidad & Tobago (**text removed here**) Communications Network Newspaper Publisher Barbados Jamaica St. Kitts - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 5(f) Caracol TV Broadcast TV Colombia (**text removed here**) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 6. Galaxy Latin Satellite delivered direct-to-home Regional (**text removed here**) America television (Holding Company) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 7. RSL Provider of long distance telephone Regional (**text removed here**) Communications services - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 8. Univision Open TV Network United States (**text removed here**) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 9. Galaxy Latin Galaxy has a network of affiliated (**text removed here**) America companies in all Latin America. These 10. (Local companies are generally the strongest Operating (broadcast or print) media company in its companies) country. All local partners were selected by ODC and ODC has retained (jointly with Via Dig (Sp) 2.93% Hughes) the option to purchase up to 40% Others up to 20% of each LOC. - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 11. Editora Abril Publisher of print media Brazil (**text removed here**) Operator of CATV Provider of DTH - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 12. Corporacion Remote interactive educational services Regional (**text removed here**) Latinoamericana Provided through DIRECTV de Servicios Educativos 13. (Clase) - ------------------------ -------------------------------------------- ---------------------------- ------------------------- 14. Coca-Cola/ Bottler of Coca-Cola products Regional (**text removed here**) Panamco - ------------------------ -------------------------------------------- ---------------------------- -------------------------
EX-2 3 0003.txt REGISTRATION RIGHTS AND STOCKHOLDERS' AGREEMENT Exhibit 2 - -------------------------------------------------------------------------------- THE SHARES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (OTHER THAN DISTRIBUTORS) UNLESS SUCH SHARES ARE REGISTERED UNDER THE ACT, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SHARES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT. - -------------------------------------------------------------------------------- AMENDED AND RESTATED REGISTRATION RIGHTS AND STOCKHOLDERS' AGREEMENT This AMENDED AND RESTATED REGISTRATION RIGHTS AND STOCKHOLDERS' AGREEMENT (this "Agreement") is made as of this 30th day of March, 2001, by and among America Online Latin America, Inc., a Delaware corporation having its principal place of business at 6600 N. Andrews Avenue, Suite 500, Fort Lauderdale, Florida 33309 (the "Company"), Banco Itau, S.A., a Brazilian Sociedade Anonima having its principal registered office at 176 Rua Boa Vista, Sao Paulo ("Itau"), Banco Banerj, S.A., a Brazilian Sociedade Anonima having its principal registered office at Rua da Alfandega 28, 9th Floor, Rio de Janeiro, Banco Itau, S.A. - Cayman Branch, a Brazilian Sociedade Anonima having its principal registered office at Ansbacher House, 3rd Floor, 20 Genesis Close, P.O. 501, Grand Cayman, Cayman Islands, B.W.I. ("Itau - Cayman"), and Itau Bank Limited, a Cayman limited liability company having its principal registered office at Ansbacher House, 3rd Floor, 20 Genesis Close - P.O. Box 10141, Grand Cayman, Cayman Islands, B.W.I. (with Itau, Banco Banerj, S.A., and Itau - Cayman, each a "Stockholder" and collectively, the "Stockholders") and, for the limited purpose of joining in the covenants contained in Sections 10.1(g), 10.2, 10.3, 10.4 and 10.5 hereof, America Online, Inc., a Delaware corporation ("AOL"), Aspen Investments LLC, a Delaware limited liability company ("Aspen"), and Atlantis Investments LLC, a Delaware limited liability company ("Atlantis," and together with Aspen, "ODC"). WHEREAS, the Company has issued to the Stockholders 31,700,000 shares (the "Initial Shares") of its Common Stock (as defined herein) pursuant to a Regulation S Stock Subscription Agreement (the "Stock Subscription Agreement") dated June 12, 2000 between the Company and Itau and Banco Banerj, S.A. (collectively, the "Former Stockholders"); and WHEREAS, in connection with the issuance of the Initial Shares (as defined below), the Company and the Former Stockholders entered into a Registration Rights and Stockholders' Agreement dated August 11, 2000 (the "Original Agreement"), which agreement was joined for a limited purpose by AOL and Riverview Media Corp., a British Virgin Islands corporation ("Riverview"); and WHEREAS, the Former Stockholders assigned their interests in the Initial Shares, the Stock Subscription Agreement and the Original Agreement to Banco Itau, S.A. - Cayman Branch and Itau Bank Limited pursuant to a letter agreement dated August 8, 2000; and WHEREAS, pursuant to the AOL-LA Share Transfer and Assignment Agreement, dated as of December 28, 2000, by and between Riverview, Aspen and Atlantis, Riverview assigned all if its right, title and interest in and to all securities of the Company owned by it to Aspen and Atlantis, together with all of its rights, duties and obligations under each of the agreements related thereto, including the Original Agreement; and WHEREAS, the Company has agreed to issue to Itau - Cayman U.S. $19,864,875 worth of shares (the "New Shares") of its Common Stock pursuant to a Stock Purchase Agreement (the "Stock Purchase Agreement") dated March 30, 2001 between the Company, Itau - Cayman, AOL and ODC, and in connection therewith the parties wish to make the New Shares subject to certain provisions of the Original Agreement and to effect certain additional changes, and in connection therewith, the Company and the Stockholders desire to amend and restate in its entirety the Original Agreement as described herein; NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, the parties hereto hereby agree to amend and restate the Original Agreement in its entirety as follows: Section 1. Definitions Section 1.1. As used in this Agreement, the following terms shall have the following meanings: "Affiliate" shall have the meaning given in the Exchange Act. "Agreement" shall have the meaning given in the Preamble. "AOL" means America Online, Inc., a Delaware corporation, and it successors. "AOL-TW" means AOL-Time Warner, Inc., a Delaware corporation, and it successors. "Available Shares" means, (i) at any time prior to the consummation of the IPO, all of the shares of Common Stock owned by the Stockholders and (ii) at any time after the consummation of the IPO, all of the Unrestricted Shares of Common Stock. "Board" means the Board of Directors of the Company as constituted from time to time. "Business Day" means any day, other than a Saturday or Sunday, on which federally chartered banks in the United States and Brazil are open for business. "Change in Control" shall mean the first to occur of the following: (a) the date on which AOL and ODC do not own, collectively, shares of capital stock of the Company representing more than fifty percent (50%) of the voting power entitled to be cast at elections for directors ("Voting Power") of the Company, (b) the date on which AOL and ODC do not, collectively, have the right to elect either (i) at least a majority of the Board of Directors of the Company or (ii) at least a majority of the members of the Special Committee of the Board of Directors of the Company (as such term is defined in the Restated Certificate of Incorporation), so long as such Special Committee is constituted and empowered as set forth in the Restated Certificate of Incorporation (the "Special Committee"), (c) any Person or Persons other than AOL or ODC acquires any general power to prevent the Company's Board of Directors or shareholders from taking action on a substantial range of corporate actions without the approval of such Person or Persons other than pursuant to covenants and agreements of the Company contained in any loan documents, indentures or similar agreements entered into in connection with any bona fide indebtedness for money borrowed by the Company after the date hereof, or (d) the date on which the Company sells, leases, exchanges or otherwise transfers (in one transaction or a series of related transactions) all or substantially all of the assets of the Company to any Person other than one in which (x) AOL and ODC own, collectively, shares of capital stock or other equity securities of the acquiring Person representing more than fifty percent (50%) of the Voting Power or collectively have the right to elect at least a majority of the board of directors or managers, as applicable, of the acquiring Person, (y) no Person or Persons other than AOL or ODC has any general power described in clause (c) above with respect to such acquiring Person and (z) the Holders have not less than the same proportionate interest in such acquiring Person vis-a-vis AOL and ODC as they had in the Company immediately prior to consummation of such sale, lease, assignment or transfer. Notwithstanding the foregoing, a Change of Control shall not be deemed to have occurred pursuant to clauses (a) or (b) so long as AOL, together with any Subsidiary, not less than seventy-five percent (75%) of the outstanding equity securities and Voting Power of which are owned, directly or indirectly, by AOL-TW, together with another third party, (i) retains not less than fifty percent (50%) of the Voting Power of the Company, with AOL and such Subsidiaries retaining greater Voting Power in the Company than such third party and (ii) has the right to elect either (i) at least a majority of the Board of Directors of the Company or (ii) at least a majority of the members of the Special Committee. "Closing Price" means, as of any date, the closing price of the Common Stock on the trading date immediately preceding the date in question as reported in the Eastern Edition of The Wall Street Journal or, if The Wall Street Journal does not then report the sales price of the Common Stock, such other source as reasonably shall be selected by the board of the directors of the Company. "Commission" means the Securities and Exchange Commission, or any successor agency performing the functions currently performed by the Securities and Exchange Commission. "Common Stock" means the Class A Common Stock, par value U.S $.01 per share, of the Company. "Company" shall have the meaning given in the Preamble. "Competitor" means any Person which competes (or any of whose Affiliates competes) in a material way with the Company or any of its operating companies; for purposes hereof, "Competitor" shall be deemed to include, without limitation, the following companies and their respective Affiliates: Globo.com, StarMedia, Yahoo, MSN.com, TerraLycos, Universo Online, Prodigy and Ciudad Internet. For purposes of this definition of "Competitor" only, Affiliate of any Person shall mean any other Person that, directly or indirectly, controls, is under common control with or is controlled by that Person. For purposes of this definition, "control" (including, with its correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Demand Filing Date" shall have the meaning given in Section 3.2. "Demand Holder" shall have the meaning given in Section 3.1. "Demand Registration" shall have the meaning given in Section 3.1. "Demand Request" shall have the meaning given in Section 3.1. "Effective Date" means August 7, 2000. "Encumbrance" shall mean any mortgage, pledge, security interest, lien, restriction on use or transfer, other than those imposed by law, voting agreement, adverse claim or encumbrance or charge of any kind (including any agreement to give any of the foregoing), any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or any agreement to give, any financing statement under the Uniform Commercial Code or similar law of any jurisdiction. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended. "Governmental Authority" shall mean any domestic or foreign national, state or municipal or other local government or multi-national body, any subdivision, agency, commission or authority thereof, or any quasi-governmental or private body exercising any regulatory authority thereunder and any corporation, partnership or other entity directly or indirectly owned by or subject to the control of any of the foregoing. "Holder" means, as of any date, the Stockholders and each other person to whom a Stockholder shall have assigned any rights hereunder in accordance with the provisions of Section 12.6 and who owns Registrable Securities as of such date. "Indemnified Party" shall have the meaning given in Section 9.3. "Indemnifying Party" shall have the meaning given in Section 9.3. "Initial Shares" shall have the meaning given in the Preamble. "IPO" means the initial public offering of the Common Stock pursuant to an offering registered under the Securities Act. "Itau" means Banco Itau, S.A., a Brazilian Sociedade Anonima. "Itau - Cayman" Banco Itau, S.A. - Cayman Branch, a Brazilian Sociedade Anonima. "Itausa" means Itausa-Investimentos Itau, S.A., a Brazilian Sociedade Anonima. "Launch Date" shall have the meaning given in the Marketing Agreement. "Lock-Up Agreement" means the agreement between each Holder and the managing underwriter or underwriters for an Underwritten Offering, pursuant to which each Holder agrees that it will not, during the Lock-Up Period (as defined below) offer to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or grant any rights with respect to any shares of Common Stock, any options or warrants to purchase any shares of Common Stock, or any securities convertible into or exchangeable for any shares of Common Stock now owned or hereafter acquired directly by such Holder or with respect to which such Holder has or hereafter acquires the power of disposition, provided such restriction shall not apply to (i) transfers to Permitted Stockholder Affiliates or (ii) Repo transactions effected in accordance with the provisions of Section 10.1(f). "Lock-Up Period" means the respective period agreed to in a Lock-Up Agreement during which time each Holder agrees that it will not offer to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or grant any rights with respect to any shares of Common Stock, any options or warrants to purchase any shares of Common Stock, or any securities convertible into or exchangeable for any shares of Common Stock now owned or hereafter acquired directly by such Holder or with respect to which such Holder has or hereafter acquires the power of disposition, provided such restriction shall not apply to (i) transfers to Permitted Stockholder Affiliates or (ii) Repo transactions effected in accordance with the provisions of Section 10.1(f). "Losses" shall have the meaning given in Section 9.1. "Marketing Agreement" means the Strategic Interactive Services and Marketing Agreement, dated as of June 12, 2000, by and between the Company, America Online Brasil Ltda., a Brazilian limited liability quota company ("AOLB"), and Itau. "New Shares" shall have the meaning given in the Preamble. "ODC" means, collectively, Aspen, Atlantis and each of their successors. "Original Agreement" shall have the meaning given in the Preamble. "Permitted Stockholder Affiliate" means any Person, not less than seventy-five percent (75%) of the outstanding equity securities and Voting Power of which are owned, directly or indirectly, by any Stockholder or Itausa. "Person" means an individual, corporation, partnership, limited liability company, joint venture, trust, university, or unincorporated organization, or a government or any agency or political subdivision thereof. "Proceeding" means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. "Prospectus" means any prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by any Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference in such Prospectus. "Public Sale" shall mean a sale of securities pursuant to an offering registered under the Securities Act or in a transaction pursuant to Rule 144 or in a Nasdaq Transaction as defined in Section 10.1(e) herein. "Register," "Registered" and "Registration," whether or not capitalized, mean and refer to a registration effected by preparing and filing a Registration Statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such Registration Statement. "Registrable Securities" means any Unrestricted Shares owned by a Holder; provided, however, that Unrestricted Shares that are Registrable Securities shall cease to be Registrable Securities (x) upon the consummation of any sale of such shares pursuant to (i) an effective Registration Statement under the Securities Act or (ii) Regulation S or Rule 144, (y) at such time, if any, as such shares of Common Stock (which are issued or which may become issued upon conversion or exchange of any other security) become eligible for sale under Rule 144(k) under the Securities Act and (z) with respect to any Holder, on the first date when all of the Registrable Securities then held by such Holder are eligible for sale during a single three month period under Rule 144. "Registration Expenses" shall have the meaning given in Section 8. "Registration Statement" means any registration statement filed with the Commission by the Company pursuant to the Securities Act and any additional registration statement, including (in each case) the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference in such registration statement to be filed pursuant to the terms of this Agreement. "Regulation S" means Regulation S promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Regulation. "Repo" shall have the meaning given in Section 10.1(f). "Required Efforts" means (i) best efforts, with respect to any registration of Registrable Securities having an aggregate market value of at least U.S. $100,000,000 (or, if the registration relates to all of the then outstanding Registrable Securities, U.S. $50,000,000), based on the closing market price for the Common Stock on the trading day prior to the Company's receipt of the request at issue and before calculation of underwriting discounts and commissions, and (ii) all commercially reasonable efforts, with respect to any other registration of Registrable Securities. "Restated Certificate of Incorporation" means the Company's Amended and Restated Certificate of Incorporation as the same may be amended from time to time. "Restricted Shares" shall have the meaning given in Section 10.1(b). "Rule 144" means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Rule 158" means Rule 158 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Rule 415" means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Sale" has the meaning given in Section 10.1(e). "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended. "Sell" has the meaning given in Section 10.1(e). "Shares" means, collectively, the Initial Shares and the New Shares, together with securities issued with respect to, or in exchange for or in replacement of, such shares by way of stock dividend, stock distribution or stock split, or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or otherwise. "Stockholder" and "Stockholders" shall have the meanings given in the Preamble. "Stock Purchase Agreement" shall have the meaning given in the Preamble. "Stock Subscription Agreement" shall have the meaning given in the Preamble. "Subsidiary" has the meaning given in the Restated Certificate. "Underwritten Registration or Underwritten Offering" means a registration in connection with which securities of the Company are sold to an underwriter for reoffering to the public pursuant to an effective Registration Statement. "Unrestricted Shares" shall have the meaning given in Section 10.1(c). Section 2. "Piggy-Back" Registrations Section 2.1. "Piggy-Back" Rights. If at any time after the IPO the Company shall determine to register for its own account or the account of others under the Securities Act (including (i) in connection with a public offering by the Company other than the IPO or (ii) a demand for registration made by any stockholder of the Company including any of the parties hereto) any of its equity securities (other than on Form S-4 or Form S-8 or their then equivalents relating to shares of Common Stock to be issued solely in connection with any acquisition of an entity or business or shares of Common Stock issuable in connection with stock option or other employee benefit plans) it shall send to each Holder written notice of such determination and if, within 30 days after the mailing of such notice, such Holder shall so request in writing, the Company shall use its Required Efforts to include in such Registration Statement all or any part of the Registrable Securities such Holder requests to be registered. The Company shall have the right to postpone or withdraw any registration effected pursuant to this Section 2.1 without any obligation to any Holder. Section 2.2. Underwritten Offerings. If the registration of which the Company gives notice is for an Underwritten Offering, the Company shall so advise the Holders as a part of the written notice given pursuant to Section 2.1. In such event, the right of any Holder to registration pursuant to Section 2.1 shall be conditioned upon such Holder's participation in such Underwritten Offering and the inclusion of such Holder's Registrable Securities in the Underwritten Offering to the extent provided herein. All Holders proposing to distribute their securities through such Underwritten Offering shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company or the stockholders effecting such registration. Notwithstanding any other provision of this Section 2, if the managing underwriter shall preclude any shares of Common Stock from being included in the Registration Statement as to which a Holder has elected to exercise the piggy-back rights granted pursuant to this Section 2 or otherwise impose a limitation on the number of shares of such Common Stock which may be included in the Registration Statement as to which a Holder has elected to exercise the piggy-back rights granted pursuant to this Section 2 because, in such underwriter's reasonable judgment, such preclusion or limitation is necessary to effect an orderly public distribution, the number of shares to be included in the Underwritten Offering or registration, if any, shall be allocated as set forth in Section 2.3. If any person does not agree to the terms of any such customary underwriting agreement, such person shall be excluded therefrom by written notice from the Company or the underwriter. Any Registrable Securities or other securities excluded or withdrawn from such Underwritten Offering shall be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors, the Company shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among the persons requesting additional inclusion in accordance with Section 2.3. Section 2.3. Cut-backs in "Piggy-Back" Registrations. For purposes of this Section 2, in any circumstance in which all of the Registrable Securities and other shares of Common Stock or other securities of the Company (including shares of Common Stock issued or issuable upon conversion of any outstanding securities of the Company) with registration rights (the "Other Shares") requested to be included in a registration on behalf of the Holders or other selling stockholders cannot be so included as a result of limitations of the aggregate number of shares of Registrable Securities and Other Shares that may be so included, the number of shares of Registrable Securities and Other Shares that may be so included, if any, shall be allocated first to the Company for securities being sold for its own account and second to all holders of the Company's common stock, including any Holders hereunder, who timely exercised their piggy-back registration rights pro rata based upon their total ownership of the aggregate number of shares requested to be included in such registration by the holders of piggy-back registration rights, or if such registration is a demand registration initiated by the Company on behalf of any other holders of demand registration rights, (i) first to such holders pro rata based upon their total ownership of the aggregate number of shares requested to be included in such registration by the holders of demand registration rights, (ii) second to all holders of the Company's common stock, including any Holders hereunder, who timely exercised their piggy-back registration rights pro rata based upon their total ownership of the aggregate number of shares requested to be included in such registration by the holders of piggy-back registration rights, and (iii) thereafter to the Company for securities being sold for its own account. The Company shall not limit the number of Registrable Securities to be included in a registration pursuant to this Agreement in order to include shares held by stockholders with no registration rights. Section 3. "Demand" Registrations Section 3.1. "Demand" Rights. At any time following the first anniversary of the Effective Date, each Holder (a "Demand Holder") may, from time to time, make a written request (each a "Demand Request") for registration under the Securities Act (a "Demand Registration") of all or part of the Registrable Securities held by such Holder; provided, however, that the Registrable Securities requested to be registered shall, on the date that the Demand Request is delivered, have an aggregate market value of at least U.S. $50,000,000 before calculation of underwriting discounts and commissions (based on the closing market price for the Common Stock on the trading day prior to the Company's receipt of the Demand Request). Each Demand Request shall specify the number of Registrable Shares proposed to be sold by such Demand Stockholder. Section 3.2. Within 15 days after receipt of each Demand Request, the Company shall give written notice of such Demand Request to all non-requesting Holders and shall use its Required Efforts to cause a Registration Statement to be filed with the Commission on a date (the "Demand Filing Date") not later than 120 days after the Company's receipt of a Demand Request, and shall use its Required Efforts to cause the same to be declared effective by the Commission as promptly as practicable after such filing. Both the initial Demand Request and any request to join in such Demand Request shall be considered a single Demand Request. The Registration Statement shall cover the Registrable Securities specified in the Demand Request, together with all or such portion of the Registrable Securities of any Holder joining in such request as are specified in a written request received by the Company within 20 days after the written notice of the Demand Request from the Company is mailed or delivered to the non-requesting Holders. Subject to Sections 3.6 and 3.7, the Registration Statement filed pursuant to the request of the Demand Holders may also include other securities of the Company. Section 3.3. Limitations on Demand Rights. Notwithstanding any other provision set forth in this Section 3, no Holder shall be entitled to deliver a Demand Request within 90 days after the effectiveness of any Registration Statement filed (i) by the Company pursuant to an Underwritten Offering by the Company or (ii) on behalf of any Demand Holder or any other holder of demand registration rights with respect to the Common Stock. The Company shall not be obligated to effect, or to take any action to effect, any such registration pursuant to Section 3.2: (a) if the Company has initiated three (3) such registrations pursuant to Section 3.2, provided that only the following registrations shall be counted: (1) registrations which have been declared or ordered effective and pursuant to which Registrable Securities have been sold and (2) registrations which have been withdrawn by the Holders (other than pursuant to the last sentence of Section 3.4) as to which the Holders have not elected to bear the Registration Expenses; (b) if the Demand Holders request that the offering be underwritten in any manner other than a firm commitment basis by underwriters selected by the Company (subject to the consent of a majority of the Demand Holders, which consent will not be unreasonably withheld, conditioned or delayed, or, if the Company has not selected an underwriter within 30 days after its receipt of a Demand Request, by the underwriters selected by holders of a majority of the Registrable Securities to be included in such Registration Statement) or if the Demand Holders request that the offering not be underwritten; or (c) if the Company and the Demand Holders are unable to obtain the commitment of the underwriter described in clause (b) above to firmly underwrite the offer. Section 3.4. Deferral of Demand Registrations. The Company may defer the filing (but not the preparation) of a Registration Statement required to be filed by this Section 3 until a date not later than 120 days after the Demand Filing Date if: (a) at the time the Company receives the Demand Request, there is (i) material non-public information regarding the Company which the Board reasonably determines not to be in the Company's interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including but not limited to the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose; or (b) prior to receiving the Demand Request, the Board had determined to effect an Underwritten Offering and the Company had taken substantial steps and is proceeding with reasonable diligence to effect such Underwritten Offering. A deferral of the filing of a Registration Statement pursuant to this Section 3.4 shall be lifted, and the requested Registration Statement shall be filed forthwith, if, (x) in the case of a deferral pursuant to clause (a)(i), the material non-public information is made public by the Company or is no longer material, (y) in the case of a deferral pursuant to clause (a)(ii), the significant business opportunity is disclosed by the Company or is terminated, or (z) in the case of a deferral pursuant to clause (b), the proposed registration for the Company's account is abandoned. In order to defer the filing of a Registration Statement pursuant to this Section 3.4, the Company shall promptly (but in any event within 10 days), upon determining to seek such deferral, deliver to each Demand Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 3.4 and containing an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Securities held by the Demand Holder and each other Holder and for which registration was previously requested may withdraw such Demand Request by giving written notice to the Company. Section 3.5. Right to Participate. The rights of any Holder to participate in an underwritten registration pursuant to this Section 3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. Section 3.6. Participation in Demand Registrations. If the Company shall request inclusion in any registration pursuant to Section 3.2 of securities being sold for its own account, or if persons holding Other Shares shall request inclusion in any registration pursuant to Section 3.2, the Demand Holders shall, on behalf of all Holders, offer to include such securities in the registration and may condition such offer on such persons' acceptance of the further applicable provisions of this Agreement (including Section 6). The Company shall (together with all Holders and other persons proposing to distribute their securities through such registration) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters. Notwithstanding any other provision of this Section 3, if the managing underwriter shall preclude any shares of Common Stock from being included in the Registration Statement as to which a Holder has elected to exercise the piggy-back rights granted pursuant to Section 3.2 or otherwise impose a limitation on the number of shares of such Common Stock which may be included in a Registration Statement being filed pursuant to Section 3.2 because in its judgment, such limitation is necessary to effect an orderly public distribution, the number of shares to be included in the underwriting or registration, if any, shall be allocated as set forth in Section 3.7. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Demand Holders holding a majority of the securities being requested in such offering (not including such non-agreeing holders). Any Registrable Securities or other securities excluded shall also be withdrawn from such registration. If shares are so withdrawn from the registration and the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 3.6, then the Company shall offer to all persons who have retained rights to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such persons requesting additional inclusion in accordance with Section 3.7. Section 3.7. Cutbacks in Demand Registrations. For purposes of Sections 3.2 and 3.6, in any circumstance in which all of the Registrable Securities and Other Shares requested to be included in a registration on behalf of the Holders undertaken pursuant to said Section 3.2 cannot be so included as a result of limitations of the aggregate number of shares of Registrable Securities and Other Shares, if any, that may be so included pursuant to Section 3.6, the number of shares of Registrable Securities and Other Shares that may be so included shall be allocated among the Holders and other selling stockholders requesting inclusion of shares (i) first, to each Holder, pro rata on the basis of the number of shares of Registrable Securities held by such Holders that such Holders had timely requested to be included in the registration, (ii) thereafter, to the selling holders of the Other Shares, pro rata on the basis of the number of Other Shares that such other selling stockholders had requested to be included in the registration, and (iii) thereafter to the Company. The Company shall not limit the number of Registrable Securities to be included in a registration pursuant to Section 3.2 in order to include shares held by any other stockholders or by the Company. Section 4. S-3 Registrations. At any time after the Company becomes eligible to file a Registration Statement on Form S-3 (or any successor form relating to secondary offerings), Holders of Registrable Securities may request the Company, in writing, to effect the registration on Form S-3 (or such successor form), of Registrable Shares having an aggregate market value of at least U.S. $25,000,000 (based on the closing market price for the Common Stock on the trading day prior to the Company's receipt of the request). The Company shall not be obligated to effect any registration under this Section 4 (i) if in a given six month period, the Company has effected one (1) such registration in such period, or (ii) if the Company has initiated four (4) such registrations pursuant to this Section 4, provided that only the following registrations shall be counted: (1) registrations which have been declared or ordered effective and pursuant to which Registrable Securities have been sold and (2) registrations which have been withdrawn by the Holders (other than pursuant to the last sentence of Section 3.4) as to which the Holders have not elected to bear the Registration Expenses. Upon receipt of any such request, the Company shall promptly give written notice of such proposed registration to all Holders from whom notice has not been received. Such Holders shall have the right, by giving written notice to the Company within 20 days after the Company provides its notice, to elect to have included in such registration such of their Registrable Securities as such Holders may request in such notice of election. The provisions of Sections 3.5 through 3.7 shall apply to such registration. Thereupon the Company shall use its Required Efforts to effect the registration on Form S-3, or such successor form, of all Registrable Securities that the Company has been requested to register in connection with such registration. Section 5. Registration Procedures Whenever any Holder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its Required Efforts to effect the registration of such Registrable Securities and in furtherance thereof the Company shall: (a) prepare and file with the Commission on any appropriate form under the Securities Act with respect to such Registrable Securities and use its Required Efforts to cause such Registration Statement to become effective; (b) (i) prepare and file with the Commission such amendments, including post-effective amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than 180 days (or (1) such lesser period as is necessary for the underwriters in an Underwritten Offering to sell unsold allotments or (2) such longer period as may be commercially reasonable if such Registration Statement is for a shelf registration conducted pursuant to the provisions of Rule 415 (or any similar provisions then in force) promulgated under the Securities Act), but in any case not including in such 180 days any period for which sales have been discontinued pursuant to Section 7(c); (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and, as so supplemented or amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and, as promptly as possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition set forth in the Registration Statement as so amended or in such Prospectus as so supplemented; (c) (i) furnish to the Holders of Registrable Securities to be sold, their counsel and any managing underwriters, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Holders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act; (d) notify the Holders of Registrable Securities to be sold, their counsel and any managing underwriters as promptly as possible and confirm such notice in writing no later than one Business Day following the day: (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (ii) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; (iii) when the Registration Statement or any post-effective amendment thereto has become effective; (iv) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (vi) when any of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby shall cease to be true and correct in all material respects; (vii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (viii) of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (e) use all Required Efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment; (f) if reasonably requested by any managing underwriter, if any Registrable Securities are to be sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should be included therein and (ii) thereafter make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this clause (f) that would, in the opinion of counsel for the Company, violate applicable law; (g) furnish to each Holder of Registrable Securities to be sold, their counsel and any managing underwriters, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; (h) promptly deliver to each Holder of Registrable Securities to be sold, their counsel, and any underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling stockholders and any underwriters in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto; (i) prior to any public offering of Registrable Securities, use its Required Efforts to register or qualify or cooperate with the selling Holders, any underwriters and their counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder or underwriter requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for at least 180 days (or such shorter period as the applicable Registration Statement shall be effective) and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject; (j) cooperate with the selling Holders and any managing underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such managing underwriters or stockholders may request at least two Business Days prior to any sale of Registrable Securities; (k) upon the occurrence of any event contemplated by Section 5(d)(viii) of this Agreement, as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file all other required documents so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (l) use its Required Efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the securities exchange, quotation system, market or over-the-counter bulletin board on which similar securities issued by the Company are then listed; (m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including those reasonably requested by any managing underwriters in order to expedite or facilitate the disposition of such Registrable Securities, and those reasonably requested by the selling Holders whether or not an underwriting agreement is entered into): (i) make such representations and warranties to such selling Holders and such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested; (ii) in the case of an Underwritten Offering, obtain and deliver copies thereof to the managing underwriters, if any, of opinions of counsel to the Company and updates thereof addressed to each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and counsel to the selling stockholders covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters; (iii) immediately prior to the effectiveness of the Registration Statement, and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Securities sold pursuant thereto, obtain and deliver copies to the selling Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to each selling Holder and each of the underwriters, if any, in form and substance as are customary in connection with Underwritten Offerings; (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters than those set forth in Section 9 of this Agreement (or such other provisions and procedures acceptable to the managing underwriters and such selling Holders); and (v) deliver such documents and certificates as may be reasonably requested by the selling Holders, their counsel and any managing underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company; (n) make available for inspection by the selling Holders, any representative of such Holders, any underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such selling Holder or underwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, representative, underwriter, attorney or accountant in connection with the Registration Statement; provided, however, that any information that is determined in good faith by the Company to be of a confidential nature at the time of delivery of such information (A) shall be kept confidential by such persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such person; or (iv) such information becomes available to such person from a source other than the Company and such source is not known by such person to be bound by a confidentiality agreement with the Company and (B) shall not be required to be disclosed to any representative or agent of a Holder with respect to which the Company has a good faith basis to request, and does so request, that disclosure of such confidential information not be made to such representative or agent; (o) comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158; (p) require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such selling Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statement refers to any such Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required; and (q) not file a Registration Statement pursuant to Section 3.2 hereof if Holders of a majority of the Registrable Securities covered thereby or their counsel or any managing underwriter of the Registrable Securities covered thereby shall reasonably object in writing within 3 Business Days of their receipt of such Registration Statement for review pursuant to Section 5(c)(i) hereof. Section 6. Lock-Up Agreement; Stockholder Right to Review Information If requested by the Company and an underwriter of Common Stock (or other securities) of the Company, each Holder shall enter into a Lock-Up Agreement pursuant to which they shall agree not to sell or otherwise transfer or dispose of any Common Stock (or other securities) of the Company held by such Holder (other than those included in the registration) during the one hundred and eighty (180) day period following the effective date of a registration statement of the Company filed under the Securities Act relating to an Underwritten Offering by the Company of its securities, provided that all stockholders of the Company holding in excess of fifteen percent (15%) of the shares of Common Stock then outstanding (calculated on an as converted fully-diluted basis) enter into similar Lock-Up Agreements of no lesser duration than that requested of such Holder and provided that such other stockholders agree not to sell any of their Company securities during the term of the Lock-Up Agreement pursuant to consent of the underwriters unless such Holder receives such consent of the underwriters to sell a proportional amount of the Common Stock held by it. Notwithstanding the foregoing, during such 180-day period, (A) each Stockholder may (i) transfer Common Stock (or other securities) of the Company to its Permitted Stockholder Affiliates, provided that each such transferee executes an identical Lock-Up Agreement and (ii) effect Repo transactions in accordance with the provisions of Section 10.1(f) hereof and (B) any Holder may transfer Common Stock (or other securities) of the Company to any Affiliate, all of the outstanding equity securities and Voting Power of which is owned, directly or indirectly, by such Holder, provided that each such transferee executes an identical Lock-Up Agreement . The obligations described in this Section 6 shall not apply to a registration on Form S-8 or S-4 or any successor form. The Company may impose stop-transfer instructions with respect to the Shares (or other securities) subject to the foregoing restrictions until the end of any applicable Lock-Up Period. Prior to the Company filing with the Commission any Registration Statement for Common Stock or any other securities of the Company, the Holders shall have a reasonable opportunity to review and comment upon any information contained in such Registration Statement relating in any way to the Holders. The Company agrees to request confidential treatment from the Commission for any information relating to the Holders if reasonably requested by the Holders. Section 7. Holder Covenants Each Holder hereby covenants and agrees that: (a) it will not sell any Registrable Securities under a Registration Statement until it has received notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective; (b) it and its officers, directors or Affiliates, if any, will comply with the Prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to a Registration Statement; and (c) upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 5(d)(iv), (v), (vi), (vii) or (viii) of this Agreement, such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. Section 8. Registration Expenses Except to the extent limited by the applicable state law, all fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not pursuant to an Underwritten Offering and whether or not any Registration Statement is filed or becomes effective and whether or not any Registrable Securities are sold pursuant to any Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any securities exchange or market on which Registrable Securities are required hereunder to be listed, and (B) in compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of one counsel for all Holders in connection with Blue Sky qualifications of the Registrable Securities and determination of the eligibility of the Registrable Securities for investment under the laws of such jurisdictions as the managing underwriters, if any, determine)); (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriters, if any; (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company; (v) Securities Act liability insurance, if the Company desires such insurance; (vi) fees and expenses of all other persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement; and (vii) all of the internal expenses of the Company incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any annual audit, the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder (all such expenses being referred to herein as "Registration Expenses"); provided, however, that except as expressly set forth herein, in no event shall Registration Expenses include any underwriting discounts, commissions, or fees attributable to the sale of the Registrable Securities or, except as provided in (i) above, any counsel, accountants or other persons retained by the Holders incurred in connection with the consummation of the transactions contemplated by this Agreement. Section 9. Indemnification and Contribution Section 9.1. Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder and its agents, brokers, investment advisors and employees of each of them and each underwriter of the Registrable Securities and each such Person's respective officers, directors, affiliates, partners and any broker or dealer through whom such shares may be sold and each person, if any, who controls (within the meaning of Section 15 of the Securities Act) such Holder or any such underwriter, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, costs of preparation and reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of Prospectus or in any amendment or supplement thereto or in any preliminary Prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, which information was reasonably relied on by the Company for use therein or to the extent that such information relates to such Holder or such Holder's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in any Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement. Section 9.2. Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, the directors, officers, agents and employees, each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses (as determined by a court of competent jurisdiction in a final judgment not subject to appeal or review) arising solely out of or based solely upon any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of Prospectus, or arising solely out of or based solely upon any untrue statement or omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of Prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading to the extent, but only to the extent, that such untrue statement or omission is contained or omitted, as the case may be, in any information so furnished in writing by such Holder to the Company specifically for inclusion in the Registration Statement or such Prospectus and that such information was reasonably relied upon by the Company for use in the Registration Statement, such Prospectus or such form of Prospectus or to the extent that such information relates to such Holder or such Holder's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Section 9.3. Conduct of Indemnification Proceedings. (a) If any Proceeding shall be brought or asserted against any person entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party promptly shall notify the person from whom indemnity is sought (the "Indemnifying Party") in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party. (b) An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, provided, however, the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; or (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding or to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the reasonable expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the reasonable expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. (c) All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within 10 Business Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder). Section 9.4. Contribution. (a) If a claim for indemnification under Section 9.1 or 9.2 is unavailable to an Indemnified Party because of a failure or refusal of a governmental authority to enforce such indemnification in accordance with its terms (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth herein, any reasonable attorneys' or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. (b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 9, no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (c) The indemnity and contribution agreements contained in this Section 9 are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties. Section 9.5. Rule 144. Following the IPO, the Company covenants that: (a) it shall file the reports required to be filed by the Company under the Securities Act and the Exchange Act, so as to enable the Holders to sell Registrable Securities pursuant to Rule 144 under the Securities Act; (b) it shall cooperate with any Holder in connection with any sale, transfer or other disposition by such Holder of any Registrable Securities pursuant to Rule 144 under the Securities Act; (c) it shall take such action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell its Common Stock without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions; and (d) upon the request of any Holder, it shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements. Section 10. Restrictions on Transfer; Certain Covenants. Section 10.1. Restrictions on Transfer by Stockholders. (a) Initial Lock-up. As a condition to, and in consideration of, the issuance by the Company to the Stockholders of the Initial Shares pursuant to the Stock Subscription Agreement, each Stockholder agrees that it will not, directly or indirectly, without the prior written consent of the Company, offer, sell, contract to sell, pledge or otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) of any right, title or interest in any of the Restricted Shares, including, without limitation, by filing (or participating in the filing of) a registration statement with the Securities and Exchange Commission in respect of, or establishing or increasing a put equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to, any of the Restricted Shares. Notwithstanding the foregoing, each Stockholder may, without violating the provisions hereof, transfer all or any part of the Restricted Shares to any Permitted Stockholder Affiliate, and may pledge, hypothecate or engage in another similar financing transaction of any Restricted Shares (including, without limitation, Repos (as defined below), if conducted in accordance with the provisions of Section 10.1(f) hereof), but not including short sales or transactions involving any hedging of a Stockholder's Shares or use of any puts, calls or other derivatives in connection with any of a Stockholder's Shares (other than in connection with Repos conducted in accordance with the provisions of Section 10.1(f) hereof) so long as (i) the transferring Stockholder continues, prior to default thereunder, to retain record and beneficial title (in connection with transactions other than Repo transactions and other than transfers to any Permitted Stockholder Affiliates) to, and have the sole and exclusive authority and right to vote the shares subject to, any such pledge, hypothecation or other financing transaction and (ii) if effected or entered into prior to the expiration of the "distribution compliance period" (as defined in Regulation S), the provisions of such transaction complies with the provisions of Regulation S. In addition, each Stockholder may, without violating the provisions hereof, tender or exchange all or any part of the Restricted Shares into any tender or exchange offer for Common Stock conducted by the Company or any third party; provided, that if such tender or exchange offer is for less than all of the then outstanding shares of Common Stock, upon consummation of such tender or exchange offer, each Stockholder shall be deemed to have first tendered or exchanged and sold all of the Unrestricted Shares then held by such Stockholder prior to selling any Restricted Shares, with the result that any Shares tendered or exchanged by a Stockholder in excess of such number of Unrestricted Shares and not purchased in the tender or exchange offer shall continue as Restricted Shares for all purposes hereunder. (b)(i) Release from Lock-up. For purposes hereof, all of the Initial Shares shall constitute "Restricted Shares" until the First Release Date. After the First Release Date, and each Release Date thereafter, the number of "Restricted Shares" shall be determined as set forth below. For purposes hereof, the "First Release Date" shall be December 10, 2001, and each subsequent "Release Date" shall be the dates that are the first, second, third and fourth anniversaries of the First Release Date. Initial Release Date Shares Restricted December 10, 2001 83.33% December 10, 2002 41.67% December 10, 2003 25.00% December 10, 2004 8.33% December 10, 2005 0.00% (ii) Notwithstanding the foregoing, the number of Restricted Shares shall be deemed to be zero (0) upon the first to occur of (A) a Change in Control and (B) the date on which Itau becomes entitled to terminate, and does so terminate, the Marketing Agreement, including, without limitation, because of an AOLA Change of Control (as such term is defined in the Marketing Agreement); provided, that if the Company timely challenges any such termination in accordance with the provisions of the Marketing Agreement, the provisions of this paragraph (b)(ii) shall not be effective unless and until there is a final arbitration award issued pursuant to Section 13 of the Marketing Agreement, that Itau was in fact entitled to terminate such Agreement. In addition, the number of Restricted Shares shall be deemed to be zero (0) if, at any time after December 10, 2003, the Company or AOLB terminates the Marketing Agreement and Itau makes payment in full in cash of the Termination Fee required to be made pursuant to Section 11.2.3(c) of the Marketing Agreement. (c) Certain Definitions. The number of Initial Shares in excess of the number of Restricted Shares, plus all of the New Shares, are referred to herein as "Unrestricted Shares." (d) Additional Securities. For purposes hereof, if after the date hereof the Company subdivides or combines its Common Stock shares or issues by way of stock dividend, stock distribution or stock split, or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization or otherwise, the percentages set forth above shall be derived by calculating the percentage which the Restricted Shares as so subdivided, combined or reclassified represent in relation to the number of Initial Shares initially issued to the Stockholders assuming for such purpose that the number of Initial Shares initially issued had been subdivided, combined or reclassified in the same manner as the Restricted Shares. (e) Additional Restrictions. Notwithstanding anything to the contrary contained herein, all sales of Shares by the Holders, regardless of whether or not such Shares have been registered for resale in accordance with the provisions of this Agreement, shall be subject to the following restrictions: (i) At least five business days prior to any Sale (as defined below) of any Common Stock by a Holder, including, without limitation, any Large Trade (as defined below), such Holder will advise the Company in writing of the dates on which such disposition is expected to commence and terminate, the number of shares of Common Stock expected to be Sold, the method of disposition and such other information as the Company may reasonably request in order to ensure such Holder's compliance with the provisions of this Section. Each Holder agrees to notify any broker/dealer in writing of the restrictions on Sale contained in this Agreement and provide the Company a copy of such notice. (ii) No Holder may, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) of, shares of Common Stock (collectively, to "Sell" or a "Sale"), in any event in a transaction recorded on the Nasdaq National Market (or any other market on which the Common Stock is then listed for trading) (a "Nasdaq Transaction") which, when aggregated with all other shares Sold by Holders in a Nasdaq Transaction on the same day, exceeds on such single trading day, 10.0% of the average trading volume of the Common Stock during the 20 trading-day period ending on the trading day prior to the date of such Sale (the "Average Trading Volume"). The restrictions contained in the preceding sentence shall not apply to any (i) Sale in which a Holder sells, in a single block transaction, shares of Common Stock which exceed in number 10.0% of the Average Trading Volume in which the sales price is at least 95% of the Closing Price (a "Large Trade"), (ii) series of Sales in a single trading day in which a Holder sells shares of Common Stock which exceed in number 10.0% of the Average Trading Volume ("Serial Large Trade") in which the sales price at which all of such Sales are consummated is at least 95% of the Closing Price, or (iii) in connection with any Sales effected pursuant to an Underwritten Offering of Shares conducted by means of a firm commitment underwriting effected by a nationally or internationally recognized investment banking firm. Notwithstanding the foregoing: (i) no more than one Large Trade may be consummated on any two (2) or more trading days in any period of ten (10) consecutive trading days unless such Large Trade (other than the first Large Trade in such period) is one in which the sales price is at least 100% of the Closing Price and (ii) no more than one Serial Large Trade may be effected on any two (2) or more trading days in any period of ten (10) consecutive trading days unless the sales prices at which all Sales constituting any such Serial Large Trade (other than such Sales on the first trading day in such period on which a Serial Large Trade in made) is at least 100% of the Closing Price. In addition, notwithstanding the foregoing and as an additional restriction, no Holder may effect any Nasdaq Transaction if the shares to be Sold in such Nasdaq Transaction, when aggregated with all other shares Sold by Holders in Nasdaq Transactions in the prior 90 days, exceeds (i) during the first two years after the date hereof, such number of unregistered shares of capital stock of an issuer which may be sold by a single holder in any 3 month period pursuant to the provisions of Rule 144(e) promulgated under the Securities Act, and (ii) thereafter, the greater of (1) 1.0% of the aggregate number of shares of Common Stock outstanding (calculated on an as converted basis) as of the start of such 90-day period and (2) the number of unregistered shares of capital stock of an issuer which may be sold by a single holder in any 3 month period pursuant to the provisions of Rule 144(e). (iii) Notwithstanding the foregoing, with respect to the Initial Shares, each Holder may, without complying with the restrictions set forth in subsection (ii) hereof, Sell all or any part of the Initial Shares that are then Unrestricted Shares in a private placement or other transaction not involving any public offering or Public Sale to a transferee reasonably acceptable to the Company (with the determination of such acceptability not to be withheld or delayed unreasonably) so long as the transferee, as a condition to such transfer, executes and delivers to the Company a written instrument in form and substance reasonably satisfactory to the Company, by which such transferee agrees to be bound by all of the provisions of this Agreement (except that, with respect to Section 10, only Sections 10.1(e)(i), (ii) and (iii) of Section 10 shall apply to such transferee and the Company) and by the provisions of the Stock Subscription Agreement applicable to the transferees of the Initial Shares, to the same extent as if such transferee had signed this Agreement and the Stock Subscription Agreement. (iv) Notwithstanding the foregoing, with respect to the New Shares, each Holder may, without complying with the restrictions set forth in subsection (ii) hereof, but subject to the provisions of Section 10.1(g) hereof, Sell all or any part of the New Shares in a private placement or other transaction not involving any public offering or Public Sale so long as (a) the transferee is not a Competitor and (b) the transferee, as a condition to such transfer, executes and delivers to the Company a written instrument in form and substance reasonably satisfactory to the Company, by which such transferee agrees to be bound by all of the provisions of this Agreement (except that, with respect to Section 10, only Sections 10.1(e)(i), (ii) and (iv)(b) and (g) of Section 10 shall apply to such transferee and the Company) to the same extent as if such transferee had signed this Agreement. If the transferee under this Section 10.1(e)(iv) is the Company, the restrictions in the preceding sentence shall not apply. (f) Repurchase Transactions. Notwithstanding the restrictions contained in this Section 10.1, each Stockholder and each Permitted Stockholder Affiliate may effect repurchase transactions ("Repos" or "Repo transactions") with respect to all or any part of the Shares so long as such Stockholder or Permitted Stockholder Affiliate, as applicable, complies with the following: (i) The Stockholder or Permitted Stockholder Affiliate shall consummate Repo transactions only (A) with such counterparties as may be specified on a list of acceptable broker/dealer or other financial institutions, as such list may be amended by agreement of the Company and the Stockholders from time to time and (B) after the Company has been provided a copy of any repurchase agreement or other instrument which a Stockholder proposes to use in connection with any contemplated Repo transaction and has determined, in its reasonable judgment, that such instrument or agreement complies in all material respects with the provisions of this Section 10.1(f); provided, that the Company shall provide any objections to any such agreement as promptly as practicable after its receipt of a true and complete copy thereof, and in any event within five (5) Business Days of its receipt of a true and complete copy thereof, and if the Company does not object to any proposed contract or agreement within such five (5) Business Day period, such instrument or agreement shall be deemed approved by the Company. Any dispute as to whether or not any such proposed contract or agreement complies in all material respects with the provisions of this Section 10.1(f) shall be resolved by arbitration pursuant to the provisions of Section 12.11 hereof; provided, that such arbitration shall be held pursuant to the procedures for a forty-five day arbitration set forth in Section 13.4 of the Marketing Agreement; (ii) No more than 10 Repo transactions in the aggregate may be in effect with respect to the Initial Shares with not more than 5 counterparties in the aggregate, in any event at any one time (with such limitations applying in the aggregate, not per Stockholder or Permitted Stockholder Affiliate); (iii) The counterparty to a Repo must agree in the applicable repurchase agreement (A) to comply with the provisions of this Section 10.1 and the restrictions contained in the Stock Subscription Agreement, with respect to all Initial Shares subject to such repurchase agreement, and to inform any transferee of any of such Shares in writing of the existence and exact nature of such restrictions and require any transferee to agree in writing to be bound by such restrictions, (B) to hold all such Shares free and clear of all liens, claims and encumbrances of any kind or nature, other than those securing the Holder's obligations under such repurchase agreement, (C) not assign or transfer the repurchase agreement or any of its rights, duties or obligations thereunder to any Person other than an Affiliate of such counterparty who agrees in writing to be bound by all of the terms and conditions of such repurchase agreement, the provisions of this Section 10.1 and the restrictions contained in the Stock Subscription Agreement, with respect to all Initial Shares subject to such repurchase agreement and prior to any such assignment or transfer, identify any proposed assignee or transferee of any of the Shares subject to any repurchase agreement or any proposed transferee or assignee of any repurchase agreement or any of the counterparty's duties or obligations thereunder and include such obligation in any Repo agreement, (D) that the Company shall have a right to approve any proposed transferee of Shares or assignee of the repurchase agreement or any of its rights, duties or obligations thereunder, including, without limitation, any Affiliate of such counterparty, such approval not with be withheld or delayed unreasonably, and (E) to make the Company a third party beneficiary entitled to enforce such agreements against the counterparty; and (iv) The Stockholder must, as part of each Repo transaction, (A) prior to default thereunder, retain the sole and exclusive authority and right to vote the shares subject to such Repo transaction, (B) if such Repo transaction is effected with respect to any Initial Shares prior to the expiration of the "distribution compliance period" (as defined in Regulation S), certify to the Company that such Repo transaction complies with the provisions of Regulation S and deliver to the Company an opinion of counsel, in form and substance, and from counsel, reasonably acceptable to the Company, that such Repo transaction does so comply, (C) retain the risk of economic loss on the Shares in connection with any Repo transaction and (D) agree on an exercise price for the put and call for the applicable Common Stock (or the repurchase price, settlement price or equivalent price term in any similar arrangement designed to effect the transfer of such Common Stock back to the Stockholder at the conclusion or earlier termination of the Repo transaction) that is at least equal to the purchase price for the Common Stock at which such Repo transaction was effected, which purchase price shall, unless the Company shall otherwise consent, be not less than the last reported sales price therefor as reported on the Nasdaq National Market (or such other market on which the Common Stock is then listed for trading and which has the then largest daily trading volume for the Common Stock. Each Stockholder hereby covenants that it will not settle any Repo transactions to which it may be party at any time by any other means other than by reacquiring record and beneficial title to the Shares that were the subject of such Repo transaction. If either Stockholder (i) fails to timely settle any Repo transaction by reacquiring record and beneficial title to the Shares that were the subject of such Repo transaction, (ii) modifies the price for any put and call or similar arrangement in connection with any Repo transaction to a price below the purchase price for the Common Stock at which such Repo transaction was effected, or (iii) renews or extends any Repo transaction at a price below the last reported sales price therefor as reported on the Nasdaq National Market (or such other market on which the Common Stock is then listed for trading and which has the then largest daily trading volume for the Common Stock), in any event as of the effective date or any renewal or extension, as applicable, such failure, modification, renewal or extension shall be deemed a breach of this Agreement, and, in addition to any remedies which the Company or any other affected party may seek as a consequence of such breach, the provisions of this Section 10.1(f) shall be deemed to have been terminated and each Stockholder's right to effect additional Repo transactions from and after such time in respect of any Restricted Shares, including, without limitation, any renewals or extensions of then existing Repo transactions, shall immediately terminate without the requirement of any notice from or other action on the part of the Company. The Company and the Stockholders shall consult with each other regarding any press releases or other disclosures, including, without limitation, any disclosures required pursuant to the provisions of the Securities Act or the Exchange Act, with respect to each Repo transaction. The Stockholders shall, and hereby agree to, indemnify and hold the Company harmless from and against any and all Losses to the extent they arise out of or in connection with any Repo transaction except to the extent such Losses arise out of the Company's disclosure in any filing made by the Company under the Securities Act or the Exchange Act of the terms of any Repo transaction effected by a Stockholder in a manner which is inaccurate and different in any material respect from any description provided in writing by the Stockholders of any such Repo transaction for use in such filing. (g) Right of First Refusal. (i) If a Stockholder wants to Sell any New Shares to any other Person in a bona fide transaction, such Stockholder (the "Offeror") shall be entitled to do so provided that such Offeror first offers to sell such New Shares to the Company at the same price and the same terms and conditions as the Offeror would receive from such other Person. The Offeror shall submit to the Company and each of AOL and ODC (collectively, the "Offerees") a written notice (the "Offer Notice") stating in reasonable detail such price or other consideration and summarizing the material terms and conditions thereof and identifying the Person and all Persons who beneficially own more than five percent (5%) of the outstanding equity or voting power of such Person, proposing to purchase the New Shares. To the extent that the identities of such five percent (5%) beneficial holders are not publicly known, the Offerees will agree to keep such information confidential pursuant to a customary confidentiality agreement. The Offerees shall have a period of fifteen (15) Business Days after the receipt of the Offer Notice in which to deliver notice (the "Acceptance Notice") to the Offeror that such Offerees accept or reject such offer, subject to the provisions of subsection (ii) below. One or more of the Offerees may elect to accept such offer. The Offerees shall mutually agree upon the number of New Shares that each of them will purchase. If the Offerees cannot agree upon the number of New Shares that each of them will purchase within such fifteen (15) business days, the number of New Shares that may be purchased shall be allocated first to the Company and second to AOL and ODC in proportion to their respective percentage ownership interests in the Company's voting securities. The Acceptance Notice shall specify (i) which of the Offerees is electing to accept the offer, (ii) the number of New Shares that each Offeree is purchasing, and (iii) a date for the closing of the purchase which, subject to the expiration or early termination of any waiting period required by any Governmental Authority and the receipt of any required approvals of any Governmental Authority, shall not be more than thirty (30) days after the date of the giving of such Acceptance Notice. Notwithstanding the foregoing, each Offeree may, at its sole discretion, subject to the provisions of any then existing restrictions on their transfer of shares of capital stock of the Company, specify one or more additional Persons to whom or which such Offeree may appoint as its designee with respect to some or all of the New Shares as to which it has delivered an Acceptance Notice. (ii) If the Offerees do not in the aggregate elect to purchase all of the New Shares subject to an Offer Notice, the Offer Notice shall be deemed rejected as to all of the New Shares, and the Offeror shall have the right to Sell to the Person identified in the Offer Notice, subject to Section 10.1(e)(iv), all (but not less than all) of such New Shares on the same terms and conditions including the price or other consideration specified in the Offer Notice, free from the restrictions of this Section 10.1(g) (for purposes of such specific transaction, but not for purposes of any subsequent transaction) in a bona fide transaction, for a period of ninety (90) days from the expiration of the period for delivering an Acceptance Notice hereunder, provided that any such purchaser shall prior to such Sale agree in writing to be bound by all of the provisions of this Agreement (except that, with respect to Section 10, only Sections 10.1(e)(i), (ii) and (iv)(b) and (g) of Section 10 shall apply to such purchaser and the Company) to the same extent as if such purchaser had signed this Agreement. At the end of such ninety (90) day period, the Offeror shall notify the Company in writing whether the New Shares subject to the Offer Notice have been sold in a bona fide transaction during such period. To the extent not sold during such ninety (90) day period, all of such New Shares shall again become subject to all of the restrictions and provisions of this Section 10.1(g). (iii) If any of the Company, AOL and/or ODC accepts the offer set forth in the Offer Notice, the closing of the purchase shall take place at the principal office of the Company or such other location as shall be mutually agreeable to the entity accepting the offer and the Offeror, and the purchase price shall be paid at the closing by wire transfer of immediately available funds or in such other appropriate form if for consideration other than cash. Notwithstanding the foregoing, if the consideration set forth in the Offer Notice is other than all cash, the party or parties electing to accept such offer may pay its equivalent fair market value in cash. The Offeror and the parties accepting offer contained in the Offer Notice shall negotiate in good faith regarding the fair market value of any such non-cash consideration. If the parties are unable to reach a mutually acceptable resolution as to the fair market value of such non-cash consideration within 15 days, the determination of such fair market value shall be made pursuant to an arbitration conducted pursuant to the provisions of Section 12.11 hereof and the closing shall be postponed until the conclusion of such arbitration. At the closing, the Offeror shall deliver to accepting entity or entities the certificates evidencing the New Shares to be transferred, duly endorsed and in negotiable form together with a duly executed stock power, "Deed of Transfer" or other appropriate instrument conveying to accepting entity or entities the New Shares being purchased thereby, free and clear of any Encumbrances, except those in this Agreement which are expressly assumed. If less than all of the New Shares evidenced by a stock certificate are being purchased, the Company shall, upon receipt of such duly endorsed stock certificate, issue to the accepting entity or entities a stock certificate evidencing the New Shares being purchased and issue to the Offeror a stock certificate evidencing the number of New Shares not being purchased. (iv) Notwithstanding anything in this Section 10.1(g) to the contrary, each Stockholder may Sell all or part of the New Shares owned by it as follows without complying with Section 10.1(g)(i), (ii), (iii) and (v), except if required in such Section 10.1(g)(v) below: (1) to any transferee that is a Permitted Stockholder Affiliate. (2) pursuant to a pledge, hypothecation or other similar financing transaction so long as the Selling Stockholder continues to have the sole and exclusive authority and right to vote the New Shares subject to such pledge, hypothecation or other financing transaction. (3) to any other Stockholder. (4) to the Company. (5) subject to the provisions of Section 10.1(e)(i) and (ii), in a Public Sale, which shall include Sales made pursuant to Section 10.1(e). (v) Notwithstanding the provisions of Section 10.1(e)(iv) that relate to transferees of New Shares, in the event that a Stockholder Sells New Shares pursuant to Section 10.1(g)(iv)(1), (2) or (3), such transferee or pledgee, as a condition to such transfer, shall deliver to the Company a written instrument, in form and substance reasonably satisfactory to the Company, by which such transferee or pledgee agrees to be bound by all of the provisions of this Agreement, including Section 10.1(g) and the restrictions on Sales to Competitors in Section 10.1(e)(iv)(a), to the same extent as if such transferee had signed this Agreement. (vi) In addition, notwithstanding anything in this Section 10.1(g) to the contrary and without complying with Section 10.1(g)(i), (ii), (iii), (iv) and (v), each Shareholder may effect Repo transactions with respect to the New Shares pursuant and subject to the provisions of Section 10.1(f). Section 10.2. Nominee to the Company's Board; Advisory Committee. (a) The Company will take all action (if any) necessary in accordance with the Delaware General Corporation Law, the Company's Restated Certificate of Incorporation, as amended, and By-laws, to increase by one (1) the total number of directors constituting the entire the Board of Directors of the Company and to appoint Itau's President and Chief Executive Officer as a Class A Director to fill such vacancy and to keep such vacancy available for the person nominated as described below. The Company further agrees that for the two years following the Effective Date and thereafter as long as (i) the Stockholders and their Permitted Stockholder Affiliates together continue to hold at least 5/12ths of the Initial Shares and (ii) the Marketing Agreement remains in full force and effect, to continue to nominate one person selected by the Stockholders as a director of the Company at each annual or special meeting of the Company stockholders at which directors are elected or pursuant to any written consents involving the election of directors. Such person shall be either the then current President or Chief Executive Officer of Itau for so long as the Board of Directors of the Company includes (i) either the Chief Executive Officer or the Chief Operating Officer of AOL and (ii) a person who is a nominee of ODC, and thereafter may include one of the then current Senior Vice Presidents who reports directly to either the President or the Chief Executive Officer of Itau. Notwithstanding the foregoing, if any such nominee resigns in mid-term for any reason other than death, serious illness or other incapacity or separation of his or her employment with the Itau or removal from the qualifying position set forth above, the Stockholders shall not be entitled to nominate any replacement until the next annual meeting of the Company at which directors are elected, and the Board of Directors of the Company may fill such vacancy temporarily in accordance with the provisions of the Company's by-laws. (b) The Company will take all action (if any) necessary in accordance with the Delaware General Corporation Law, the Company's Restated Certificate of Incorporation, as amended, and By-laws, to appoint an Advisory Committee and to appoint the person nominated pursuant to Section 10.2(a) as a member of such Advisory Committee. (c) Each of AOL and ODC agrees to take all necessary action, including voting all of the Common Stock and Common Stock Equivalents (as hereinafter defined) of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of stockholders called for the purpose of electing directors) and executing any necessary consents, and the Company agrees to take all actions (including, but not limited to the nomination and recommendation to its shareholders of the specified persons) to cause and maintain the election of the person nominated pursuant to Section 10.2(a) to the Board of Directors of the Company and the Advisory Committee in accordance with the provisions of this Section 10.2. Section 10.3 Right of Participation in Sales by AOL and ODC. (a) If at any time AOL and/or ODC wishes to sell, transfer, assign or otherwise dispose of any shares of Common Stock or any securities of the Company convertible into, exercisable for or exchangeable for shares of Common Stock ("Common Stock Equivalents") to any Person (the "Purchaser") in a single transaction or series of transactions which would result in the transfer, either individually or when combined with all other sales, transfers and other dispositions of Common Stock and Common Stock Equivalents by the transferring party in the immediately preceding 12 month period, of more than fifteen percent (15%) of the shares of Common Stock of the Company held by AOL or ODC, as applicable, immediately following consummation of the IPO and the transactions contemplated hereby (as adjusted to reflect any stock splits, stock dividends, reverse stock splits, recapitalizations and similar capital events), in each case calculated on an as converted, fully diluted basis, it shall so notify the Stockholders (the "Sale Notice"), and each Stockholder shall have the right to require, as a condition to such sale or disposition, that the Purchaser purchase from such Stockholder at the same price per share and on the same terms and conditions as involved in such sale or disposition by AOL and/or ODC, as applicable, the same percentage of the Available Shares then held by such Stockholder as such sale or disposition represents with respect to the aggregate number of shares of Common Stock and Common Stock Equivalents owned by whichever of AOL and ODC is selling, calculated on an as converted, fully diluted basis (the "Aggregate Stockholdings"), or, if both are selling, the same percentage as such sale or disposition represents with respect to the Aggregate Stockholdings owned by whichever of AOL and ODC that is selling the greatest percentage of its Aggregate Stockholdings; provided, that if the right to participate as provided in this Section accrues only after a combination of transactions which together exceed such 15% threshold, then each Stockholder shall have the right to require, as a condition to such sale or disposition, that the Purchaser purchase from such Stockholder the same percentage of the Available Shares then held by such Stockholder as such combined sales or dispositions represent with respect to the Aggregate Stockholdings owned by whichever of AOL and ODC is selling as of the first of such sales, or, if both are selling, the same percentage as such combined sales or dispositions represent with respect to the Aggregate Stockholdings owned by whichever of AOL and ODC has sold the greatest percentage of its Aggregate Stockholdings as of the first of such sales. If a Stockholder wishes so to participate in any such sale or disposition it shall notify AOL and/or ODC, as applicable, of such intention as soon as reasonably practicable after receipt of the Sale Notice, and in all events within fifteen (15) days after receipt thereof, which communication shall be delivered by hand or mailed to AOL and/or ODC, as applicable, at the address set forth in Section 12.2 below. AOL and/or ODC, as applicable, and the Stockholder(s) shall sell to the Purchaser all, or at the option of the Purchaser, any part of the Common Stock proposed to be sold by them at not less than the price and upon other terms and conditions, if any, not more favorable to the Purchaser than those originally offered; provided, however, that any purchase of less than all of such Common Stock by the Purchaser shall be made from AOL and/or ODC and the Stockholder pro rata based upon the Available Shares held by the Stockholder(s) timely electing to participate in such sales and the Aggregate Stockholdings of AOL and/or ODC, as applicable. AOL and ODC, as applicable, shall each use its best efforts to obtain the agreement of the Purchaser to the participation of the Stockholders in the contemplated sale, and shall not sell any Common Stock to such Purchaser if such Purchaser declines to permit the Stockholders to participate pursuant to the terms of this Section 10.3. (b) Notwithstanding the foregoing, the provisions of this Section 10.3 shall not apply to: (i) any transfer of Common Stock or Common Stock Equivalents by gift; (ii) any transfer of Common Stock or Common Stock Equivalents to any Person, not less than seventy-five percent (75%) of the outstanding equity securities and Voting Power of which is held by the transferring party or which holds not less than seventy-five percent (75%) of the outstanding equity securities and Voting Power of the transferring party; (iii) any sale of Common Stock in a public offering pursuant to a registration statement filed with the Commission; (iv) any transfer of Common Stock or Common Stock Equivalents by ODC to AOL at any time after the consummation of the IPO, (v) any transfer of Common Stock or Common Stock Equivalents by ODC to any member of the Cisneros Family (as such term is defined in the Restated Certificate of Incorporation) and (vi) any bona-fide pledge, hypothecation or other similar financing transaction in which the transferring party continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction; provided that, in the case of transfers effected pursuant to clauses (i), (ii) or (v) above, such Person agrees to be bound by the provisions of this Section 10.3 with respect to the Common Stock and Common Stock Equivalents so transferred. (c) The provisions of this Section 10.3 shall be of no further force and effect from and after the first to occur of (i) the date on which the Marketing Agreement is terminated in accordance with its terms other than by reason of a breach by the Company and/or AOLB of the provisions thereof and (ii) the date that the aggregate number of shares of Common Stock then held by the Stockholders and their Permitted Stockholder Affiliates represents less than 5/24ths of the Initial Shares (as adjusted for stock splits, stock dividends, reclassifications, recapitalizations or other similar events); provided, that if the Company and/or AOLB terminates the Marketing Agreement and the Stockholders timely challenge such termination in accordance with the terms of the Marketing Agreement, the provisions of clause (i) of this paragraph (c) shall not be effective unless and until there is a final arbitration award issued pursuant to Section 13 of the Marketing Agreement that the Company and/or AOLB, as applicable, was in fact entitled to terminate such Agreement. Section 10.4. Noncompetition Provisions (a) Each of AOL and ODC agrees that, for so long as the Stockholders and their Permitted Stockholder Affiliates collectively hold shares of Common Stock representing not less than 6% of the outstanding capital stock of the Company, calculated on a fully diluted basis, the Stockholders shall be entitled to enforce the noncompetition obligations of AOL and ODC (the "Existing Stockholders") contained in Sections 4.1 and 4.2 of the Amended and Restated Stockholders' Agreement, dated as of March 30, 2001, by and between the Company, AOL and ODC (the "Existing Stockholders' Agreement"), as the same may be amended from time to time, on the terms and conditions set forth therein as if the Stockholders were parties thereto; provided, that the provisions of the Existing Stockholders' Agreement that are effective only so long as each of AOL and ODC owns 20% of the issued and outstanding Voting Stock, as such percentage is adjusted pursuant to the Existing Stockholders' Agreement, shall be enforceable against AOL or ODC, as the case may be, so long as such party owns 20% of the issued and outstanding Voting Stock, as such percentage is adjusted pursuant to the Existing Stockholders' Agreement. (b) Each Stockholder covenants and agrees to be bound by and comply with the provisions of Sections 4.1 and 4.2 of the Existing Stockholders' Agreement that are applicable to ODC thereunder as if such Stockholder were a party thereto, except that (i) such covenant and agreement shall expire at such time as the Stockholders and their Permitted Stockholder Affiliates collectively own less than six percent (6%) of the outstanding capital stock of the Company, calculated on a fully diluted basis, (ii) such covenant and agreement shall not be enforceable by any Existing Stockholder against whom the Existing Stockholders' Agreement is not enforceable by the Stockholders, and (iii) all references to "Cisneros Family Members," "RSL-LA" and "GLA" shall not apply with respect to the Stockholders. (c) Notwithstanding anything to the contrary contained herein, the provisions of this Section 10.4 shall expire on the first to occur of (i) the date on which the Marketing Agreement is terminated in accordance with its terms and (ii) August 11, 2010. In addition, the parties hereto agree that the provisions of Section 4.2(a) of the Existing Stockholders' Agreement, as they apply to the Stockholders, shall be applied so that (i) the repurchase obligations contained therein that are triggered upon a breach by AOL or ODC shall apply, with respect to the Shares held by the Stockholders and their Permitted Stockholder Affiliates, to whichever of AOL or ODC as shall have breached the provisions of Section 4.1 of the Existing Stockholders' Agreement and (ii) AOL shall have the right to repurchase the Shares held by the Stockholders and any Permitted Stockholder Affiliates upon any breach by either or both of the Stockholders, or any Permitted Stockholder Affiliate then holding any Shares, of the provisions of said Section 4.1. (d) For the avoidance of doubt, with respect to PC Access Services, TV Access Services and Wireless Access Services (as such terms are defined in the Existing Stockholders' Agreement), neither Stockholder shall be deemed to be engaging in a Restricted Activity (as such term is defined in the Existing Stockholders' Agreement), unless (i) a Stockholder or any Permitted Stockholder Affiliate then holding Shares is a Significant Competitor (as such term is defined in the Existing Stockholders' Agreement), or the Stockholders and the Permitted Stockholder Affiliates then holding Shares are an Aggregated Significant Competitor (as such term is defined in the Existing Stockholders' Agreement) or (ii)(A) a Stockholder has, or the Stockholders' and/or the Permitted Stockholder Affiliates then holding Shares collectively have, a direct and/or indirect ownership interest in any applicable Person or Persons of at least thirty five percent (35%) and (B) such Person is a Significant Competitor or a Stockholder together with the other Stockholder and the Permitted Stockholder Affiliates then holding Shares and/or such other Person or Persons are an Aggregated Significant Competitor. Section 10.5 Participation in Registrations by AOL and ODC. Each of AOL and ODC agrees that the "piggy back" registration rights granted to the Stockholders pursuant to Section 2.1 hereof shall be applicable to any demand or Form S-3 registrations to be conducted by the Company on either of their behalf pursuant to the provisions of the Amended and Restated Registration Rights Agreement, dated as of March 30, 2001, by and between the Company, AOL and ODC, subject to the provisions of Section 2.3 hereof. Section 10.6 Right of Participation in Sales by the Company. (a) Right of Participation. Except as provided in Section 10.6(f) of this Agreement, the Company shall not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange (i) any debt or equity security of the Company (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (iii) any security of the Company that is a combination of debt and equity, or (iv) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such equity, debt or combination security of the Company, in any event solely for cash or cash equivalents, to any Person including any Existing Stockholder or any Affiliate thereof (the "Offered Securities"), unless in each case the Company shall have first offered to each Stockholder that portion of such securities as the number of Shares then held by such Stockholder bears to the total number of shares of Common Stock (including all shares of capital stock convertible into Common Stock, on a fully-diluted basis) of the Company then outstanding (each Stockholder's "Pro Rata Amount," and collectively, the "Aggregate Pro Rata Amount"), at a cash price and on such other terms as shall have been specified by the Company in writing delivered to such Stockholder (the "Offer"), which Offer by its terms shall remain open and irrevocable for a period of ten (10) Business Days from receipt of the offer. (b) Notice of Acceptance. Notice of each Stockholder's intention to accept, in whole or in part, any Offer made pursuant to Section 10.6(a) shall be evidenced by a writing signed by such Stockholder and delivered to the Company prior to the end of the 10 Business Day period of such Offer, setting forth such of the Stockholder's Pro Rata Amount as such Stockholder elects to purchase (the "Notice of Acceptance"). (c) Conditions to Acceptances and Purchase. (i) Permitted Sales. The Company shall have ninety (90) days from the expiration of the period set forth in Section 10.6(a) to close the sale of all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by the Stockholders, but only for cash at the per share price and/or interest rates, as applicable, and otherwise in all respects upon terms and conditions which are no less favorable, in the aggregate, to the Company than those set forth in the Offer. If the number of Offered Securities to be sold is reduced in any material amount, the Company shall again provide the Stockholders with notice pursuant to the provisions of Section 10.6(a), regardless of whether Notices of Acceptance previously have been delivered, and the Purchasers shall have an additional five (5) Business Day period in which to submit a Notice of Acceptance, if one has not been previously submitted, or withdraw a previously submitted Notice of Acceptance, in any event with respect to such reduced amount of Offered Securities. (ii) Closing. Upon the closing, which shall include full payment to the Company, of the sale to another Person or Persons of all or less than all the Offered Securities, the Stockholders shall purchase from the Company, and the Company shall sell to the Stockholders, the number of Offered Securities specified in the Notices of Acceptance. The purchase by the Stockholders of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Stockholders of a purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Stockholders and their counsel and containing terms and conditions no less favorable, in the aggregate, than those contained in the similar purchase agreements entered into with the other purchasers of Offered Securities. (d) Further Sale. In each case, any Offered Securities not purchased by the Stockholders or other Person or Persons in accordance with Section 6(c) may not be sold or otherwise disposed of until they are again offered to the Stockholders under the procedures specified in Sections 6(a), 6(b) and 6(c). (e) Termination of Right of Participation. The rights of the Stockholders under this Section 10.6 shall terminate immediately upon the first to occur of (i) the date on which the Marketing Agreement is terminated in accordance with its terms for any reason other than a breach by the Company and/or AOLB of the provisions thereof and (ii) August 11, 2004, regardless of whether or not the Company is then subject to the provisions of the Exchange Act with respect to any of its equity or debt securities; provided, that if the Company and/or AOLB terminates the Marketing Agreement and the Stockholders timely challenge such termination in accordance with the terms of the Marketing Agreement, the provisions of clause (i) of this paragraph (e) shall not be effective unless and until there is a final arbitration award issued pursuant to Section 13 of the Marketing Agreement that the Company and/or AOLB, as applicable, was in fact entitled to terminate such Agreement (f) Exception. The rights of the Stockholders under this Section 10.6 shall not apply to: (i) Common Stock issued as a stock dividend to holders of Common Stock or upon any subdivision or combination of shares of Common Stock, (ii) shares of Preferred Stock issued as a dividend to holders of Preferred Stock upon any subdivision or combination of shares of such series of Preferred Stock, (iii) shares of Common Stock issued or issuable pursuant to options, warrants or other rights (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) issued to employees, officers or directors of, or consultants or advisors (other than AOL, ODC or their Affiliates) to the Company or any subsidiary pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board of Directors, (iv) Common Stock offered to the public pursuant to a registration statement filed under the Securities Act, and (v) the issuance of Common Stock issued upon the exercise of options or warrants to purchase Common Stock outstanding as of the date of execution of the Stock Subscription Agreement. (g) Waiver. The rights of the Stockholders under this Section 10.6 may be waived in any instance, on behalf of all of the Stockholders, prospectively or retroactively, by the written agreement of the holders of not less than sixty six and two-thirds percent (66-2/3%) of the Common Stock owned beneficially or of record by the Stockholders and or their Permitted Stockholder Affiliates. Section 10.7 Repatriation. Each Stockholder covenants and agrees to use all commercially reasonable efforts, as and when requested by the Company, to assist the Company in obtaining all required consents and approvals, if any, of the Brazilian central bank and other Brazilian regulatory authorities in connection with any contemplated repatriation or other movement or transfer of funds from Brazil to a jurisdiction outside of Brazil in connection with the transactions contemplated hereby. Any such assistance shall be provided without cost or expense to the Stockholders, and each may require, as a condition to providing such assistance, that the Company agree to indemnify and hold such Stockholder harmless from and against any liability that may arise as a consequence of the Stockholder providing such assistance other than as a result of the Stockholder's illegal acts, gross negligence or bad faith. Section 11. Term of Registration Rights The rights of Holders with respect to the registration rights granted pursuant to this Agreement shall remain in effect, subject to the terms hereof, so long as there are Restricted Securities or Registrable Securities or securities which are directly or indirectly convertible or exchangeable for Restricted Securities or Registrable Securities issued and outstanding. Section 12. Miscellaneous. Section 12.1. Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Section 12.2. Notices. Any and all notices or other communications or deliveries required or permitted to be provided pursuant to this Agreement shall be in writing and shall be deemed to have been received (a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct answer back received), telecopy or facsimile (with transmission confirmation report) at the address or number designated below, or such other address as may be designated in writing hereafter, in the same manner, by such person (if delivered on a Business Day during normal business hours where such notice is to be received), or the first Business Day following such delivery (if delivered on a Business Day after normal business hours where such notice is to be received) or (b) on the second Business Day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for each Holder shall be maintained by the Company. The address for the Company shall be: America Online Latin America, Inc. 6600 N. Andrews Avenue, Suite 500 Fort Lauderdale, FL 33309, USA Attention: Chief Executive Officer fax: (954) 233-1801 Copies of all notices shall be sent to: America Online Latin America, Inc. 6600 N. Andrews Avenue, Suite 500 Fort Lauderdale, FL 33309, USA Attention: General Counsel fax: (954) 233-1805 The address for the Stockholders shall be: c/o Banco Itau S.A. Rua Boa Vista 176 Sao Paulo Brazil Attn: President and CEO Fax No: (011) 55-11-237-3030 Copies of all notices shall be sent to: Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square, New York, NY 10036-6522 Attention: Paul T. Schnell, Esq. Fax No: (212) 735-2000 The address for AOL shall be: America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323, USA Attn: President, AOL International Fax No.: (703) 265-2502 Copies of all notices shall be sent to: America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323, USA Attn: General Counsel Fax No.: (703) 265-2208 The address for ODC shall be: c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134, USA Attn: Fax No.: Copies of all notices shall be sent to: Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134, USA Attn: Legal Department Fax No.: (305) 447-1389 Section 12.3. Remedies. In the event of a breach by the Company or by a Holder of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Stockholders agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by any of them of any of the provisions of this Agreement and hereby further agree that, in the event of any action for specific performance in respect of such breach, the breaching party or parties shall waive the defense that a remedy at law would be adequate. Section 12.4. No Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has, as of the date hereof, nor shall the Company or any of its subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Without limiting the generality of the foregoing, the Company shall not grant to any person the right to request the Company to register any securities of the Company under the Securities Act unless the rights so granted are subject in all respects to the prior rights in full of the Holders, and are not otherwise in conflict or inconsistent with the provisions of this Agreement. Section 12.5. Amendments and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and the Holders; or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Notwithstanding the foregoing, no such amendment shall be effective to the extent that it applies to less than all of the Holders. The Company shall not offer or pay any consideration to a Holder for consenting to such an amendment or waiver unless the same consideration is offered to each Holder and the same consideration is paid to each Holder which consents to such amendment or waiver. Section 12.6. Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. The rights of each Holder hereunder, including the right to have the Company register for resale Registrable Securities in accordance with the terms of this Agreement, shall be automatically assignable by each Holder together with the Registrable Securities, or the securities into which such Registrable Securities are convertible or exchangeable into, to another Person if: (a) the assigning Holder transfers or otherwise assigns to such Person at least 2,641,666 Shares (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits and the like), or, if the number of shares of Registrable Securities so assigned is less than such number, the assignee is a Permitted Stockholder Affiliate, (b) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (i) the name and address of such transferee or assignee, and (ii) the number of securities with respect to which such registration rights are being transferred or assigned, (c) at or before the time the Company receives the written notice contemplated by clause (b) of this Section, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions of this Agreement and, with respect to any Initial Shares, by the provisions of the Stock Subscription Agreement applicable to transfers of Initial Shares, and (d) such transfer shall have been made in accordance with the applicable requirements of any agreement applicable to the transfer of such shares. The rights to assignment shall apply to the Holders (and to subsequent) successors and assigns. Notwithstanding the foregoing, the Stockholders shall have no right to assign any of the rights granted to the Stockholders pursuant to Sections 10.2, 10.3, 10.4 and 10.6 of this Agreement, each of which shall be non-transferable and personal to the Stockholders, and any such assignment shall be null and void, except that each Stockholder may assign such rights to its Permitted Stockholder Affiliates in connection with transfers of Shares to such Permitted Stockholder Affiliates, and from and after any such assignment, the Permitted Stockholder Affiliate shall have the rights of the Stockholders hereunder. Section 12.7. No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Section 12.8. Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. Section 12.9. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. Section 12.10. Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify, or affect, or be considered in construing or interpreting the meaning or construction of any of the terms or provisions hereof. Section 12.11 Arbitration of Disputes. (a) Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof ("Dispute"), shall be decided by arbitration administered by the American Arbitration Association ("AAA") in accordance with the International Arbitration Rules of the AAA ("Rules"). For the purpose of any arbitration held pursuant to this Section 12.11, the Company shall act as one party and the Holders shall act as one party for the purpose of the appointment of arbitrators and for general conduct of the arbitration. The arbitration shall be conducted and the award shall be rendered in New York, New York in the English language. Any judicial proceeding by a party seeking to set aside, vacate or modify an arbitral award issued hereunder shall be filed in the United States District Court for the Southern District of New York or the New York State Courts located in New York, New York and shall be subject to the Federal Arbitration Act, 9 U.S.C. sec. 1 et seq. The parties hereto consent to the exclusive jurisdiction of the aforesaid courts for any action to vacate or set aside an arbitration award hereunder. Each arbitration shall be commenced by, and on the date of, the serving of a statement of claim by the claimant on the respondent ("Commencement"). The claimant shall simultaneously file such statement of claim with the AAA. The arbitral award shall be final and binding and the prevailing party may enter such award in any court having jurisdiction. The panel shall order all expenses and costs of an arbitration, including reasonable counsel and consultant fees, to be paid by the non-prevailing party. In a proceeding in which both parties prevail on different issues in dispute, the panel shall provide in its award for an apportionment of such expenses and costs reasonably reflecting the relative significance of the issues decided. Any disputes as to the reasonableness of counsel fees or other expenses or costs of the prevailing party shall be decided by the same panel. The arbitral award shall incorporate the amount of costs and fees to be paid by the non-prevailing party. By agreeing to arbitration, the parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies or to order any party or parties to request that a court modify or vacate any temporary or preliminary relief issued by that court, and to award damages for the failure of any party to respect the arbitral tribunal's orders to that effect. The parties shall use commercially reasonable efforts to facilitate the expeditious resolution of any Disputes. (b) In connection with any Arbitration hereunder, the following specific schedule and content of proceedings shall be adhered to by the parties unless otherwise mutually agreed. There shall be three (3) neutral arbitrators, of whom each party shall appoint one within thirty (30) days of the receipt by the respondent of the statement of claim. If any arbitrator is not appointed within the time limit provided herein, such arbitrator shall be appointed by the American Arbitration Association. The two arbitrators so appointed shall select the chair of the arbitral tribunal within thirty (30) days of the appointment of the second arbitrator. If the third arbitrator is not appointed within the time limit provided herein, such arbitrator shall be appointed by the American Arbitration Association by providing the parties a list of ten (10) qualified arbitrators and their relevant biographical data. Within ten (10) days after receipt of such list, each party shall return said list to the AAA in which it shall strike three (3) of the arbitrators and rank the remaining arbitrators 1 through 7, 1 being the party's first choice. Unless the parties agree to request an additional list from the AAA, and thus to repeat the process with the same timing, the AAA shall select the arbitrator as promptly as possible having the highest combined preference based upon the rankings of the parties. Upon written notice by the AAA to the parties of the third arbitrator selected, the panel shall be seated. The arbitrator who shall serve as chair of the tribunal shall not be a national of the United States or Brazil. (c) In order to facilitate the comprehensive resolution of related disputes, all claims between any of the parties to this Agreement that arise under or in connection with this Agreement and/or any of the Related Agreements (other than the Escrow Agreement) may be brought in a single arbitration. Upon the request of any party to an arbitration proceeding constituted under this Agreement, the arbitral tribunal shall consolidate the arbitration proceeding with any other arbitration proceeding involving any of the parties hereto relating to any of the Related Agreements (other than the Escrow Agreement) if the arbitrators determine that (i) there are issues of fact or law common to the proceedings so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) no party would be unduly prejudiced as a result of such consolidation through undue delay or otherwise. In the case of all arbitration proceedings hereunder, the award of the arbitrators shall be final and fully effective as between the parties when the award is issued to the parties without regard to the filing by any party of judicial proceedings seeking to set aside, vacate or modify the award. If proceedings are filed as to any award and a final judicial determination is made setting aside, vacating or modifying the award, the parties shall take all appropriate actions to comply with such determination, including the revocation or unwinding of any actions taken or restoration of any payments made pursuant to the arbitral award with interest thereon at the prevailing rate. In any consolidated arbitration held pursuant to this Section 12.11(c), the procedures to be followed shall be the arbitration procedures set forth in Sections 13.2 and 13.2 of the Marketing Agreement. Section 12.12. Counterparts; Facsimiles. This Agreement may be executed and delivered in one or more counterparts, each of which shall be deemed to be an original, and all of which when taken together shall constitute one and the same instrument and shall become effective when copies hereof, bearing the signatures of each of the Parties, shall have been received by the Company, each of the Stockholders, ODC and AOL. Facsimile signatures to this Agreement and each of the exhibits attached hereto shall be effective if promptly followed by the original signed Agreement or exhibit, as the case may be. Section 12.13 Governing Law. This Agreement, and the rights and liabilities of the Parties hereunder, shall be governed by the substantive laws of the State of Delaware, USA without giving effect to its rules relating to conflict of laws. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written. AMERICA ONLINE LATIN AMERICA, INC. By: Name: Title: BANCO ITAU, S.A. WITNESS: By: By: Name: Roberto Egydio Setubal Name: Title: President and Chief Title: Executive Officer WITNESS: By: By: Name: Milton Luis Ubach Monteiro Name: Title: Executive Vice President Title: BANCO BANERJ, S.A. WITNESS: By: By: Name: Roberto Egydio Setubal Name: Title: President Title: WITNESS: By: By: Name: Ronald Anton de Jongh Name: Title: Executive Director Title: BANCO ITAU, S.A. - CAYMAN BRANCH WITNESS: By: By: Name: Name: Title: Title: WITNESS: By: By: Name: Name: Title: Title: ITAU BANK LIMITED WITNESS: By: By: Name: Name: Title: Title: WITNESS: By: By: Name: Name: Title: Title: The parties signing below are signing for the limited purpose of joining the covenants contained in Sections 10.1(g), 10.2, 10.3, 10.4 and 10.5 of this Agreement. AMERICA ONLINE, INC. By: Name: Title: ASPEN INVESTMENTS LLC By: Name: Title: ATLANTIS INVESTMENTS LLC By: Name: Title: EX-3 4 0004.txt CERTIFICATION OF INCORPORATION Exhibit 3 RESTATED CERTIFICATE OF INCORPORATION OF AMERICA ONLINE LATIN AMERICA, INC. Pursuant to Sections 242 and 245 of the Corporation Law of the State of Delaware -------------------- (Originally incorporated under the same name on November 22, 1999) FIRST: The name of the corporation is America Online Latin America, Inc. (the "Corporation"). SECOND: The initial registered office of the Corporation is to be located at 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle; and the name of the initial registered agent of the Corporation in the State of Delaware is The Prentice-Hall Corporation System, Inc. THIRD: (a) Purpose. Subject to the provisions of Clause (d) of this Article THIRD and Clause (b)(i)(B) of Article FOURTH, the purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the "GCL"); provided, however, that until all outstanding shares of High Vote Stock (as defined below) of the Corporation have been converted into shares of Class A Common Stock (as defined below) in accordance with Clause (b)(iii) of Article FOURTH of this Certificate of Incorporation or are otherwise no longer issued and outstanding, the Corporation shall not, and shall not have the power to, engage directly or indirectly, including without limitation through any Subsidiary (as defined below) or Affiliate (as defined below), in any business other than (i) providing Interactive Services (as defined below) in the Territory (as defined below), and engaging in ancillary activities necessary or desirable to conduct such businesses and (ii) providing Content, management and related activities on the AOL online service or any other AOL-branded property, including creating, maintaining and managing for AOL, English and Spanish-language versions of a mini channel directed at the Hispanic audience in the United States, and taking all actions necessary or desirable to carry out and perform such activities and any other activities contemplated, either explicitly or implicitly, thereby, including executing, delivering and performing any agreements, documents and instruments entered into in connection therewith. (b) Definitions. As used herein, the following terms shall have the following meanings: "Action" shall mean any claim, action, suit, arbitration, mediation, inquiry, proceeding or investigation by or before any Governmental Authority (or arbitrator or mediator, as the case may be), whether at law or in equity. "Additional Shares of Common Stock" shall have the meaning given in Clause (c) of Article FOURTH. "Advancement of Expenses" shall have the meaning given in Clause (e) of this Article THIRD. "Affiliate" of any Person shall mean any other Person that, directly or indirectly, controls, is under common control with or is controlled by that Person. For purposes of this definition, "control" (including, with its correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "AOL" shall mean America Online, Inc., a Delaware corporation. "AOL-branded" shall mean, with respect to any internet or online service that such service includes the words "AOL" or "America Online" as an integral part of the name of such internet or online service. For the avoidance of doubt, a reference to an internet or online service being available on or through "AOL" or "America Online" internet or online service shall not itself make such service "AOL-branded", nor would the description of, for example, Netscape, an AOL company. By way of illustration, the "AOL Latin America regional internet portal service" and the "America Online Brasil online service" are "AOL-branded" services, while "Netscape Online" is not an AOL-branded service. "Aspen" shall mean Aspen Investments LLC, a Delaware limited liability company. "Atlantis" shall mean Atlantis Investments LLC, a Delaware limited liability company. "Board" shall mean the Corporation's Board of Directors. "Business Plan" shall mean, with respect to each country within the Territory, an annual capital, revenue and expense plan, including pro forma statements of income/loss, financial condition and cash flows, the projected cash funding requirements of the applicable Operating Entity on a quarterly basis, and such other information as the Board shall require from time to time, together with a quarterly cash funding plan with dates of funding, plus marketing, operational and other business strategies, reflecting the financial objectives and requirements of the applicable Operating Entity. "By-laws" shall mean the By-laws of the Corporation, as the same may be amended or restated from time to time. "Cisneros Family" shall mean Ricardo Cisneros, Gustavo Cisneros and/or their lineal descendants, individually or collectively and/or any trusts for the exclusive benefit of any one or more of such persons. "Class A Common Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Class A Director" shall have the meaning given in Clause (b) of Article FOURTH. "Class B Common Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Class B Director" shall have the meaning given in Clause (b) of Article FOURTH. "Class B Securities" shall mean collectively the Series B Preferred Stock and/or the Class B Common Stock, as the same may be outstanding from time to time. "Class B Triggering Event" shall have the meaning given in Clause (b) of Article FOURTH. "Class C Common Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Class C Director" shall have the meaning given in Clause (b) of Article FOURTH. "Class C Securities" shall mean collectively the Series C Preferred Stock and/or the Class C Common Stock, as the same may be outstanding from time to time. "Class C Triggering Event" shall have the meaning given in Clause (b) of Article FOURTH. "Common Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Communication Services" includes chat, e-mail, message boards, online transactions and other forms of online interaction. "Content" shall mean either (i) text or (ii) multimedia information which contains any combination of any of the following in digital form or such other forms as may become available in the future: text, graphics, video, sound, still images, or the like. "Conversion Date" shall have the meaning given in Clause (c) of Article FOURTH. "Conversion Ratio" shall mean collectively, the Series B Conversion Ratio and the Series C Conversion Ratio. "Corporate Opportunity" shall mean an investment or business opportunity or prospective economic or competitive advantage in which the Corporation could, but for the provisions of this Article THIRD, have an interest or expectancy. Notwithstanding the foregoing, "Corporate Opportunity" shall not include any Special Power. "Corporation" shall have the meaning given in Article FIRST. "Damages" shall mean any and all costs, losses, claims, liabilities, fines, penalties, damages and expenses (including interest which may be incurred in connection therewith), court costs, and reasonable fees and expenses of counsel, consultants and expert witnesses, incurred by a Person indemnified pursuant to the provisions of paragraph (e) of this Article THIRD. "Employee" shall mean, with respect to a Parent Entity as of any date, any then current employee of such Parent Entity or of any Wholly-Owned Affiliate of such Parent Entity. "Encumbrance" shall mean any mortgage, pledge, security interest, lien or restriction on use or transfer, voting agreement, adverse claim or encumbrance or charge of any kind (including any agreement to give any of the foregoing), any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of, or any agreement to give, any financing statement under the Uniform Commercial Code or similar law of any jurisdiction. "Executive Committee" shall have the meaning given in Clause (e) of Article FIFTH. "Fair Market Value" shall mean, as of any date, the average closing price for the Class A Common Stock as quoted on any national securities exchange or on the NASDAQ National Market System for the fifteen trading days ending on the second trading day prior to such date as reported in the Eastern Edition of The Wall Street Journal. If the Class A Common Stock shall not be listed on any such exchange or traded on any such automated quotation system on all such trading days during such 15-trading day period, the closing or latest reported price for Class A Common Stock in the over-the-counter market on each trading day on which such shares are not so listed or traded as reported by NASDAQ or, if not so reported, then the last sale price for each such day, as reported by the National Quotation Bureau Incorporated, or if such organization is not in existence, by an organization providing similar services (as determined by the Board), shall be deemed to be the closing price on such trading day. If, at a time when the Class A Common Stock is trading other than on such an exchange, there shall not have been a sale on any such trading day, the mean of the last reported bid and asked quotations as reported in the Eastern Edition of The Wall Street Journal for Class A Common Stock on such day shall be deemed to be the closing price. If the shares of Class A Common Stock shall not be so reported on any of such trading days, then the Fair Market Value per share of such Class A Common Stock shall be the fair market value thereof as determined in the reasonable judgment of the Board of Directors. For the purpose hereof, "trading day" shall mean a day on which the securities exchange or automated quotation system specified herein shall be open for business or, if the shares of Class A Common Stock shall not be listed on such exchange or automated quotation system for such period, a day with respect to which quotations of the character referred to in the next preceding sentence shall be reported. "Final Adjudication" shall have the meaning given in Clause (e) of this Article THIRD. "GCL" shall have the meaning given in Clause (a) of this Article THIRD. "Governmental Authority" shall mean any United States federal, state or local or any foreign government, governmental, regulatory or administrative authority, or commission or any court, tribunal or agency. "High Vote Common Stock" shall mean, collectively, the Class B Common Stock and the Class C Common Stock. "High Vote Preferred Stock" shall mean, collectively, the Series B Preferred Stock and the Series C Preferred Stock. "High Vote Stock" shall mean, collectively, the High Vote Common Stock and the High Vote Preferred Stock. "Interactive Services" shall mean the provision of Content or Communication Services which may be provided through the use of any protocols, standards, or platforms (including Internet or Internet derivative protocols, standards, and platforms) for remote access by narrowband or broadband infrastructure, including without limitation POTS, ISDN, ADSL, satellite, cable, fiber optics, wireless and hybrid CD-ROM. "Internet Portal Services" shall mean a comprehensive collection of AOL-branded, Spanish and/or Portuguese language, internet or online services intended to aggregate and market all material consumer relevant segments of web-based Content targeted to consumers in one or more specific countries within the Territory and accessible to all Persons, regardless of whether they are Subscribers within such countries. By way of illustration, in Brazil, the americaonline.com.br is an Internet Portal Service, while individual websites devoted to e-commerce, vertical markets or specific subjects (e.g., personal finance) would not be Internet Portal Services. "Launch" shall mean the first commercial availability of an Interactive Service to potential Subscribers in the Territory or a country in the Territory, as applicable. "Liquidation Preference" shall have the meaning given in Clause (c) of Article FOURTH . "Mandatory Redemption" shall have the meaning given in Clause (c) of Article FOURTH. "ODC" shall mean, individually and collectively, Riverview Media Corp., a British Virgin Islands corporation, and Aspen and Atlantis, for so long as each of Aspen and Atlantis is directly or indirectly wholly owned by the Cisneros Family, and, any Permitted Transferee(s) for so long as such Permitted Transferee(s) are directly or indirectly wholly owned by, or is a or are, member(s) of the Cisneros Family. Notwithstanding the foregoing, in each instance in this Certificate where (i) ODC is required to provide any consent to any action or inaction by the Corporation or any other Person, (ii) reject or otherwise determine not to pursue any Corporate Opportunity, or (iii) hold or vote any proxy required to be delivered hereunder, the term "ODC" shall mean, (A) Aspen and/or Atlantis, if Aspen and/or Atlantis then collectively hold at least a majority of the voting power of the High Vote Stock and Common Stock then held by ODC and its Permitted Transferees, in the aggregate, and (B) if Aspen and/or Atlantis do not then collectively hold at least a majority of the voting power of the High Vote Stock and Common Stock then held by ODC and its Permitted Transferees, in the aggregate, such Person or Persons as the Corporation may, in its sole discretion based on the stock record books of the Corporation, determine then holds at least a majority of the voting power of the High Vote Stock and Common Stock then held by ODC and its Permitted Transferees, in the aggregate. "Operating Entity" shall mean an Affiliate of the Corporation formed for the purpose of operating and/or marketing and supporting the business of the Corporation in one or more jurisdictions in the Territory. "Original Issue Date" shall have the meaning given in Clause (c) of Article FOURTH. "Parent Entity" shall mean each of AOL and ODC. "PC Access Services" shall mean the provision by any Person of physical network access (irrespective of bandwidth or type of physical infrastructure such as cable, fiber optics, copper, fixed wireless or satellite) to online and/or internet services to end users of personal computers. "Permitted Encumbrances" shall mean (i) liens for taxes, assessments and other governmental charges or levies not due and payable, or which currently are being contested in good faith by appropriate proceedings, (ii) mechanics', workmen's, repairmen's, materialmen's, warehousemen's, vendors' and carriers' liens, and other similar liens arising in the ordinary course of business for charges which are not delinquent, or which currently are being contested in good faith by appropriate proceedings and have not proceeded to judgment, and (iii) liens in respect of judgments or awards with respect to which there shall be a good faith current prosecution of an appeal or proceedings for review which is secured by an appropriate bond or a stay of execution pending such appeal or proceedings for review. "Permitted Transferee" shall mean AOL, ODC, each of their Wholly-Owned Affiliates, Employees of AOL and ODC, and members of the Cisneros Family. "Person" shall mean an individual, corporation, partnership, limited liability company, trust, unincorporated organization, or other legal entity, or a Governmental Authority, or their equivalent under the applicable legal system. "Preferred Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Redemption Date" shall have the meaning given in Clause (c) of Article FOURTH. "Redemption Notice" shall have the meaning given in Clause (c) of Article FOURTH. "Redemption Price" shall have the meaning given in Clause (c) of Article FOURTH. "Registration Rights Agreement" means the Amended and Restated Registration Rights Agreement by and among the Corporation, AOL and ODC dated March 30, 2001, as the same may be amended, supplemented or restated from time to time. "Section 141(a)" shall have the meaning given in Clause (c) of Article FIFTH. "Series B Conversion Ratio" shall have the meaning given in Clause (c) of Article FOURTH. "Series B Preferred Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Series C Conversion Ratio" shall have the meaning given in Clause (c) of Article FOURTH. "Series C Preferred Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Special Committee" shall have the meaning given in Clause (d) of Article FIFTH. "Special Power" shall mean any investment or business opportunity or prospective economic or competitive advantage that (i) is presented to or becomes known to an officer of the Corporation who is not also an officer or director of AOL or ODC or any of their Subsidiaries or Affiliates (other than the Corporation), (ii) occurs or arises solely in the Territory and (iii) involves opportunities, activities or operations of a type or nature which the Corporation is then pursuing or conducting (i.e., accepting advertising from a local provider of products or services, or advertising directed solely in the Territory from an international provider of products or services as opposed to advertising by an international provider of products or services directed both within and outside of the Territory) as opposed to opportunities, activities or operations of a type which the Corporation is not then conducting (i.e., offering a new product, technology or service not then being offered by the Corporation). "Stockholders' Agreement" shall mean the Amended and Restated Stockholders' Agreement by and among the Corporation, AOL and ODC, dated as of March 30, 2001, as the same may be amended, supplemented or restated from time to time. "Strategic Partner" shall mean any Person who acquires 25% or more of the equity of the Corporation and who provides a strategic benefit to the Corporation in the form of a contractual relationship or contribution of material, in-kind assets. "Subscriber" shall mean, as of any date of determination and with respect to any Interactive Service, any Person who has opened an account with or otherwise registered as a user of such Interactive Service. "Subsidiary" shall mean, with respect to any Person, any corporation, limited liability company, partnership, association, joint venture or other business entity of which (i) if a corporation, (x) ten percent (10%) or more of the total voting power of shares of stock entitled to vote in the election of directors thereof or (y) ten percent (10%) or more of the value of the equity interests is at the time owned or controlled, directly or indirectly, by the Person or one or more of its other Subsidiaries, or (ii) if a limited liability company, partnership, association or other business entity, ten percent (10%) or more of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by the Person or one or more of its subsidiaries. The Person shall be deemed to have ten percent (10%) or greater ownership interest in a limited liability company, partnership, association or other business entity if the Person is allocated ten percent (10%) or more of the limited liability company, partnership, association or other business entity gains or losses or shall be or control the Person managing such limited liability company, partnership, association or other business entity. "Territory" shall mean the following countries: Anguilla Haiti Antigua Honduras Argentina Jamaica Aruba Martinique Bahamas Mexico Barbados Netherlands Antilles Barbuda Nevis Montserrat Belize Nicaragua Bolivia Panama Brazil Paraguay Caicos Islands Peru Cayman Islands Puerto Rico Chile St. Kitts Colombia St. Lucia Costa Rica St. Maarten Cuba St. Martin Dominica St. Vincent Dominican Republic Suriname Ecuador The Grenadines El Salvador Tobago French Guiana Trinidad Grenada Turks Islands Guadeloupe Uruguay Guatemala Venezuela Guyana Virgin Islands "Transfer Agent" shall have the meaning given in Clause (b) of Article FOURTH. "TV Access Services" shall mean the provision by any Person of network access (irrespective of bandwidth or transmission media, including, without limitation, cable, fiber optics and satellite) to online and/or internet services to end users of the television platform by means of cable or satellite transmission. "Undertaking" shall have the meaning given in Clause (e) of Article THIRD. "Voting Stock" shall have the meaning given in Clause (a) of Article FOURTH. "Wholly Owned Affiliate" shall mean with respect to any Person any other Person which is directly or indirectly wholly owned by such Person, directly or indirectly wholly owns such Person or is directly or indirectly wholly owned by the same Person as such Person, with such ownership to mean possession of both 100% of the equity interest and 100% of the voting interest, except for directors' qualifying shares, if any. Any Person that is directly or indirectly wholly owned by the Cisneros Family shall be deemed a Wholly Owned Affiliate of ODC, and any Person that is directly or indirectly wholly owned by AOL Time Warner, Inc, a Delaware corporation, shall be deemed a Wholly Owned Affiliate of AOL. "Wireless Access Services" shall mean the provision by any Person of network access by use of electromagnetic waves (irrespective of bandwidth or transmission protocol) to online and/or internet services to end users of mobile wireless access devices, which access services are acquired or developed by AOL for Launch anywhere on or prior to August 7, 2004. "Wireless Access Services" shall not include any PC Access Services or TV Access Services, notwithstanding their use of electromagnetic waves or otherwise. For the avoidance of doubt, the fact that an end user of a PC Access Service or TV Access Service shall transmit information to his or her personal computer or television by means of an infrared or other wireless keyboard or similar input device shall not make such PC Access Service or TV Access Service a Wireless Access Service. (c) Competing Activities and Corporate Opportunities. The stockholders of the Corporation, including, without limitation, AOL, ODC, and their respective officers, directors, agents, shareholders, members, partners, Affiliates and Subsidiaries (other than the Corporation and its Subsidiaries), may engage or invest in, independently or with others, any business activity of any type or description, including without limitation those that might be the same as or similar to the Corporation's business or the business of any Subsidiary or Affiliate of the Corporation and that might be in direct or indirect competition with the Corporation or any Subsidiary or Affiliate of the Corporation, including, without limitation, any business of the Corporation conducted pursuant to any Special Power, and neither the Corporation, any Subsidiary or Affiliate of the Corporation (other than the Corporation and its Subsidiaries) nor any other stockholder of the Corporation shall have any right in or to such other ventures or activities or to receive or share in any income or proceeds derived therefrom. If either AOL or ODC (or, except as to any matter the Corporation has the corporate power to exploit pursuant to Clause (d) of Article THIRD, any of their respective officers, directors, agents, shareholders, members, partners, Affiliates or Subsidiaries) acquires knowledge of a potential transaction or matter which may be a Corporate Opportunity or otherwise is then exploiting any Corporate Opportunity, the Corporation shall have no interest in, and no expectation that, such Corporate Opportunity be offered to it, any such interest or expectation being hereby renounced, so that such Person (1) shall have no duty to communicate or present such Corporate Opportunity to the Corporation, shall have the right to hold any such Corporate Opportunity for its (and its officers', directors', agents', shareholders', members', partners', Affiliates' or Subsidiaries') own account or to recommend, sell, assign or otherwise transfer such Corporate Opportunity to Persons other than the Corporation or any Subsidiary of the Corporation, and (2) shall not be liable to the Corporation or its stockholders for breach of any fiduciary duty as a stockholder of the Corporation or otherwise by reason of the fact that such Person pursues or acquires such Corporate Opportunity for itself, directs, sells, assigns or otherwise transfers such Corporate Opportunity to another Person, or does not communicate information regarding such Corporate Opportunity to the Corporation. (d) Limitation on Corporate Powers. (1) The Corporation shall not have the corporate power to take any action, or to cause or permit any Subsidiary or Affiliate to take any action, to exploit in any manner any Corporate Opportunity (other than a Special Power) unless and until exploitation of such Corporate Opportunity is rejected by AOL and by ODC (in each case by each of AOL and ODC on their own behalf and on behalf of their respective Subsidiaries and Affiliates) as set forth herein. The Corporation shall not have the corporate power to take any action, or to cause or permit any Subsidiary or Affiliate to (or to own any Subsidiary or Affiliate that does) take any action, to exploit in any manner any Corporate Opportunity, knowledge of which is obtained by any person who is an officer, director, employee or agent of the Corporation and who is neither (1) a Class B or Class C Director nor (2) an officer or director of AOL or ODC or any of their Subsidiaries or Affiliates (other than the Corporation) unless and until (A) such Corporate Opportunity shall be presented to AOL and ODC (in each case to AOL and ODC on their own behalf and on behalf of their respective Subsidiaries and Affiliates) and (B) AOL determines that AOL shall not and ODC determines that ODC shall not (in each case by each of AOL and ODC on their own behalf and on behalf of their respective Subsidiaries and Affiliates) pursue such Corporate Opportunity. The Corporation shall not have the corporate power to take any action, or to cause or permit any Subsidiary or Affiliate to take any action, to exploit in any manner any Corporate Opportunity, knowledge of which is obtained by any person who is a director or officer of the Corporation and who is either (1) a Class B Director or (2) a director or officer of AOL or any of its Subsidiaries or Affiliates (other than the Corporation) unless and until exploitation of such Corporate Opportunity is rejected by AOL on its own behalf and on behalf of its Subsidiaries and Affiliates. The Corporation shall not have the corporate power to take any action, or to cause or permit any Subsidiary or Affiliate to (or to own any Subsidiary or Affiliate that does) take any action, to exploit in any manner any Corporate Opportunity, knowledge of which is obtained by any person who is a director or officer of the Corporation and who is either (1) a Class C Director or (2) a director or officer of ODC or any of its Subsidiaries or Affiliates (other than the Corporation) unless and until exploitation of such Corporate Opportunity is rejected by ODC on its own behalf and on behalf of its Subsidiaries and Affiliates. Notwithstanding the foregoing, each or both of AOL and ODC, and each of their Subsidiaries and Affiliates, may exploit any Corporate Opportunity that may become or is a Special Power of the Corporation regardless of whether the Corporation is then exploiting or attempting to exploit such Special Power. (2) For purposes of Clause (d)(1) of this Article THIRD, if any Person entitled to exploit a Corporate Opportunity does not, within 180 calendar days after becoming aware of such Corporate Opportunity, begin to pursue, or thereafter continue to pursue, such Corporate Opportunity, the Corporation shall then have the corporate power to take any action or cause or permit any Subsidiary to take any action to exploit in any manner any such Corporate Opportunity; provided that the 180 calendar days within which a Person must begin to or continue to pursue a Corporate Opportunity shall not be deemed to have elapsed with respect to a Person until the day after the date reasonably determined by the Board of Directors of the Corporation to be the 180th calendar day after such Person became aware of the Corporate Opportunity as set forth in a written notice from the Corporation to the Person or Persons entitled to exploit the Corporate Opportunity; and provided further that each recipient of such notice does not object to such determination in writing to the Corporation within ten (10) business days following the receipt of such written notice. In the case of an objection by a recipient of the date set forth in the written notice provided in the preceding sentence, the 180th calendar day shall be the date mutually agreed upon by the Corporation and the Person or Persons entitled to exploit the Corporate Opportunity. (3) Except as specifically provided in Clause (d)(1) of this Article THIRD, for purposes of Clause (d) of this Article THIRD only (A) the term "Corporation" shall mean the Corporation and all Subsidiaries and Affiliates of the Corporation and (B) the terms AOL and ODC shall mean, as applicable, AOL, ODC, and each of their Subsidiaries and Affiliates other than the Corporation. (e) Indemnification. (i) If, and to the extent that, the Corporation, any stockholder of the Corporation or any other Person brings any Action against AOL or ODC (or any of their officers, directors, agents, shareholders, members, partners, Affiliates or Subsidiaries) seeking any Damages or injunctive or other equitable relief based on, arising out of or relating to any breach or alleged breach of any fiduciary or other duty based on any action or inaction which is permitted by the provisions of this Article THIRD or which is otherwise taken in reliance upon the provisions of this Article THIRD, the Corporation shall, to the fullest extent permitted by law, indemnify and hold such Persons harmless from and against all Damages arising out of or in connection with any such Action. The right to indemnification conferred herein shall include the right to be paid by the Corporation the expenses (including attorneys', accountants', experts' and other professionals' fees, costs and expenses) incurred in defending any such Action in advance of its final disposition (an "Advancement of Expenses"); provided, however, that if, but only if and then only to the extent, the GCL requires, an Advancement of Expenses incurred by an indemnitee hereunder shall be made only upon delivery to the Corporation of an undertaking (an "Undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a "Final Adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Article THIRD or otherwise. The rights to indemnification and to the Advancement of Expenses conferred herein shall be contract rights and, as such, shall inure to the benefit of the indemnitee's successors, assigns, heirs, executors and administrators. (ii) If a claim for indemnification under this Article THIRD hereof is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (A) any suit brought by an indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and (B) any suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Corporation shall be entitled to recover such expenses only upon a Final Adjudication that, the indemnitee has not met the applicable standard for indemnification, if any, set forth in the GCL. Neither the failure of the Corporation (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth herein or in the GCL, nor an actual determination by the Corporation (including its directors, or a committee thereof, independent legal counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, under this Article THIRD or otherwise, shall be on the Corporation. (iii) The rights to indemnification and to the Advancement of Expenses conferred in this Article THIRD shall not be exclusive of any other right which any person may have or hereafter acquire by any statute, this Certificate of Incorporation, the Corporation's By-laws, or any agreement, vote of stockholders or disinterested directors or otherwise. (f) Notice to Holders. Any person purchasing or otherwise acquiring any interest in shares of the capital stock of the Corporation, or any other securities, rights, warrants, options or debt instruments of the Corporation convertible into or exchangeable for, capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article THIRD. FOURTH: (a) Authorized Capital Stock. (i) Authorized Shares. The total number of shares of stock that the Corporation shall have the authority to issue is 2,250,000,000 shares, comprised of 1,750,000,000 shares of Common Stock, par value $.01 per share, issuable in three classes, as set forth below, and 500,000,000 shares of Preferred Stock, par value $.01 per share, issuable in one or more series as hereinafter provided. (ii) Common Stock. The authorized shares of Common Stock shall be comprised of (1) 1,250,000,000 shares of Class A Common Stock (the "Class A Common Stock"); (2) 250,000,000 shares of Class B Common Stock (the "Class B Common Stock"); and (3) 250,000,000 shares of Class C Common Stock (the "Class C Common Stock."). The Class A Common Stock, the Class B Common Stock and the Class C Common Stock shall hereinafter collectively be called the "Common Stock." (iii) Preferred Stock. Of the 500,000,000 shares of Preferred Stock authorized for issuance, (1) 150,000,000 shares shall be designated and known as the "Series B Redeemable Convertible Preferred Stock" (hereinafter, the "Series B Preferred Stock"), (2) 150,000,000 shares shall be designated and known as the "Series C Redeemable Convertible Preferred Stock" (hereinafter, the "Series C Preferred Stock") and (3) 200,000,000 shares shall be reserved for issuance by the Board in accordance with the provisions of Clause (c) of this Article FOURTH. The Series B Preferred Stock and Series C Preferred Stock shall have the rights, privileges and obligations set forth in Clause (c) of this Article FOURTH. The rights, privileges and obligations of each other series of Preferred Stock shall be as set forth in the resolution or resolutions adopted in the manner set forth in Clause (c) of this Article FOURTH. The Series B Preferred Stock, the Series C Preferred Stock and each other series of Preferred Stock created by the Corporation in accordance with the provisions of this Certificate of Incorporation shall hereinafter collectively be called the "Preferred Stock." (iv) Increases and Decreases in Size. The number of authorized shares of any class or classes or series of capital stock of the Corporation may be increased or decreased (but not below the number of shares thereof then outstanding) only after receiving each of the following votes: (x) the affirmative vote of the holders of at least seventy five percent (75%) of the voting power of the stock of the Corporation entitled to vote generally in the election of Class A Directors ("Voting Stock") irrespective of the provisions of Section 242(b)(2) of the GCL or any corresponding provision hereinafter enacted and without a separate class vote of the holders of such class or classes, except as provided in clauses (y) and (z) hereof; (y) if there are one or more shares of Class B Securities then outstanding, the affirmative vote of the holders of a majority of the Class B Securities then outstanding voting together as a single class; and (z) if there are one or more shares of Class C Securities then outstanding, the affirmative vote of the holders of a majority of the Class C Securities then outstanding voting together as a single class. (b) Terms of Common Stock; Voting; Directors. (i) Rights and Privileges; Voting Rights. (A) The holders of shares of Common Stock shall have the following voting rights: (1) Each share of Class A Common Stock shall be entitled to one (1) vote per share in person or by proxy on all matters submitted to a vote of the stockholders of the Corporation on which the holders of the Class A Common Stock are entitled to vote. (2) Each share of High Vote Common Stock shall be entitled to ten (10) votes per share in person or by proxy on all matters submitted to a vote of the stockholders of the Corporation on which the holders of such High Vote Common Stock are entitled to vote. (3) Except as provided in Clause (c) of Article FOURTH and as may be provided pursuant to resolutions of the Board adopted pursuant to the provisions of this Certificate of Incorporation and the By-laws, establishing any series of Preferred Stock and granting to the holders of such shares of Preferred Stock rights to elect additional directors under specified circumstances, and subject to Article FOURTH, Clause (b)(iii)(C) and (D) and Article FIFTH, Clause (a) below, the Board shall consist of fourteen (14) directors. Subject to Article FOURTH, Clauses (b)(iii)(C) and (D) and Article FIFTH, Clause (a) below: (x) the holders of the Class B Securities, voting separately as a class, shall be entitled to elect five (5) of the fourteen (14) directors of the Board (each a "Class B Director"); (y) the holders of the Class C Securities, voting separately as a class, shall be entitled to elect five (5) of the fourteen (14) directors of the Board (each a "Class C Director"); and (z) the remaining four (4) directors (each a "Class A Director"), shall be elected by the vote of the holders of the Common Stock, voting as one class (or if any holders of shares of Preferred Stock are entitled to vote together with the holders of Common Stock, as a single class with such holders of shares of Preferred Stock). (4) Except as provided in Clause (c) of Article FOURTH or as otherwise required in this Certificate of Incorporation, the By-laws or by applicable law, the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation generally (or if any holders of shares of Preferred Stock are entitled to vote together with the holders of Common Stock, as a single class with such holders of shares of Preferred Stock). (B)(1) Notwithstanding anything in this Certificate of Incorporation to the contrary, so long as any shares of High Vote Stock are outstanding, except as otherwise required by Section 242(b)(2) of the GCL, only the holder or holders, as the case may be, of the High Vote Stock shall be entitled to vote on the matters set forth in clauses (I) through (VII) of this Clause (b)(i)(B)(1), and the vote of holders of a majority of the outstanding Class B Securities and Class C Securities, each voting separately as a class, or if only one of the Class B Securities or Class C Securities is then outstanding, the vote of holders of a majority of such Class B Securities or Class C Securities shall be required to: (I) Approve any amendment or repeal of Article THIRD of this Certificate of Incorporation or adopt any provision inconsistent therewith; (II) Approve any amendment or repeal of Article FOURTH of this Certificate of Incorporation or adopt any provision inconsistent therewith; (III) Approve any amendment or repeal of Article FIFTH of this Certificate of Incorporation or adopt any provision inconsistent therewith; (IV) Approve any amendment or repeal of Articles III (including Schedule 3.1(b) thereto), IV, X, or XI or Section 5.2 of the By-laws; (V) Approve any expansion of the business of the Corporation beyond the provision of PC Access Services, AOL-branded TV Access Services, AOL-branded Wireless Access Services and AOL-branded Internet Portal Services in the Territory; (VI) Approve the creation of any Operating Entity in any country within the Territory; and (VII) Approve the commencement of any Action (without regard to the amount in controversy) or settlement of any Action to which the Corporation or any Subsidiary is a party or the subject thereof, which Action could materially adversely affect the rights of AOL or ODC or any of their Subsidiaries or Affiliates. (2) Notwithstanding anything in this Certificate of Incorporation to the contrary, so long as any shares of High Vote Stock are outstanding, the vote of holders of a majority of the outstanding Class B Securities (except to the extent that the holders of a majority of the outstanding Class B Securities have waived such voting right) and Class C Securities (except to the extent that the holders of a majority of the outstanding Class C Securities have waived such voting right), each voting separately as a class, or, if only one of the Class B Securities or Class C Securities is then outstanding, the vote of the holders of a majority of such Class B Securities or Class C Securities, shall be required to approve: (I) The merger, consolidation, dissolution or liquidation of the Corporation or any Subsidiary, or any transaction having the same effect; (II) Except pursuant to (1) employee stock option and similar incentive plans approved by the Board and the holders of a majority of each class of High Vote Stock or (2) a conversion or exchange right set forth in this Certificate of Incorporation or similar constitutive documents of any Subsidiary, or in the Stockholders' Agreement, the issuance, authorization, cancellation, alteration, modification, redemption or any change in, of, or to, any Common Stock, Preferred Stock or other equity security of the Corporation or any Subsidiary, or any option, put, call or warrant with respect to the foregoing; (III) The transfer or other disposition of, or placing any Encumbrance (other than Permitted Encumbrances) on, any material asset of the Corporation or any Subsidiary (other than disposition of inventory or obsolete assets of the Corporation or any Subsidiary); (IV) Any transaction involving (i) the Corporation or any Subsidiary as a result of which the Corporation or any Subsidiary, alone or with its Affiliates, acquires control over any other Person; or (ii) any related series or combination of transactions having or which will have, directly or indirectly, the same effect as any of the foregoing; (V) The establishment of any entity (or the creation of any entity owned jointly with any other party) by the Corporation or any Subsidiary and the adoption of, and any material changes to, any Subsidiary's method of doing business; (VI) The adoption of any Business Plan for an Operating Entity and the approval of any modification of any line item or other provision in any Business Plan in respect of any Operating Entity. (VII) The adoption of any strategic plan and business projections for the Corporation or any Subsidiary and approval, rescission or amendment of any strategic decision material to the conduct of the business of the Corporation or any Subsidiary; (VIII) The establishment of, or making any significant modification to, the investment and/or cash management policies of the Corporation or any Subsidiary; (IX) The approval of the discontinuation of any material activity engaged in from time to time by the Corporation or any Subsidiary; (X) The approval of the entering into of any partnership, joint venture or consortium with any other Person by the Corporation or any Subsidiary; (XI) The entry into agreements by the Corporation or any Subsidiary outside of the ordinary course of business; and (XII) The approval of the filing for bankruptcy of or any decision not to take action to prevent a filing for bankruptcy or not to oppose an involuntary filing for bankruptcy or other winding up of the Corporation or any Subsidiary. (ii) Dividends and Distributions. (A) Subject to the preferences applicable to the Preferred Stock outstanding at any time, if any, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor; provided, that, subject to the provisions of this Section, the Corporation shall not pay dividends or make distributions to any holders of any class of Common Stock unless simultaneously with such dividend or distribution, as the case may be, the Corporation makes the same dividend or distribution with respect to each outstanding share of Common Stock regardless of class. (B) In the case of dividends or other distributions payable in Class A Common Stock, Class B Common Stock or Class C Common Stock, including distributions pursuant to stock splits or divisions of Class A Common Stock, Class B Common Stock or Class C Common Stock which occur after the first date upon which the Corporation has issued shares of any of Class A Common Stock, Class B Common Stock or Class C Common Stock, only shares of Class A Common Stock shall be distributed with respect to Class A Common Stock, only shares of Class B Common Stock shall be distributed with respect to Class B Common Stock, and only shares of Class C Common Stock shall be distributed with respect to Class C Common Stock. In the case of any such dividend or distribution payable in shares of Class A Common Stock, Class B Common Stock or Class C Common Stock, the number of shares of each class of Common Stock payable per share of each such class of Common Stock shall be equal in number. (C) In the case of dividends or other distributions consisting of other voting securities of the Corporation or of voting securities of any Person that is a Wholly Owned Affiliate of the Corporation, the Corporation shall declare and pay such dividends in three separate classes of such voting securities, identical in all respects, except that: (1) the voting rights of each such security paid to the holders of Class B Common Stock and Class C Common Stock, when compared to the voting rights of each such security paid to the holders of Class A Common Stock, shall have voting rights determined pursuant to the same formula as provided in Clause (b)(i)(A) of Article FOURTH above; (2) such security paid to the holders of Class B Common Stock shall convert into the security paid to the holders of Class A Common Stock upon the same terms and conditions then applicable to the conversion of Class B Common Stock into Class A Common Stock and shall have the same restrictions on transfer and ownership applicable to the transfer and ownership of Class B Common Stock; and (3) such security paid to the holders of Class C Common Stock shall convert into the security paid to the holders of Class A Common Stock upon the same terms and conditions then applicable to the conversion of Class C Common Stock into Class A Common Stock and shall have the same restrictions on transfer and ownership applicable to the transfer and ownership of Class C Common Stock. In the case of any such dividend or distribution payable in other voting securities of the Corporation or any Wholly Owned Affiliate of the Corporation, the number of shares or other interest of such voting securities payable per share of each such class of Common Stock shall be equal in number. (D) In the case of dividends or other distributions consisting of securities convertible into, or exchangeable for, voting securities of the Corporation or voting securities of any Person that is a Wholly Owned Affiliate of the Corporation, the Corporation shall provide that such convertible or exchangeable securities and the underlying securities be identical in all respects (including, without limitation, the conversion or exchange rate), except that: (1) the voting rights of each security underlying the convertible or exchangeable security paid to the holders of Class B Common Stock and Class C Common Stock, when compared to the voting rights of each security underlying the convertible or exchangeable security paid to the holders of the Class A Common Stock, be determined pursuant to the same formula as provided in Clause (b)(i)(A) of Article FOURTH above; (2) such underlying securities paid to the holders of the Class B Common Stock shall convert into the underlying securities paid to the holders of Class A Common Stock upon the same terms and conditions then applicable to the conversion of Class B Common Stock into Class A Common Stock and shall have the same restrictions on transfer and ownership applicable to the transfer and ownership of the Class B Common Stock; and (3) such underlying securities paid to the holders of the Class C Common Stock shall convert into the underlying securities paid to the holders of Class A Common Stock upon the same terms and conditions then applicable to the conversion of Class C Common Stock into Class A Common Stock and shall have the same restrictions on transfer and ownership applicable to the transfer and ownership of the Class C Common Stock. In the case of any such dividend or distribution payable in other voting securities of the Corporation or any Wholly Owned Affiliate of the Corporation, the number of shares or other interest of such voting securities payable per share of each such class of Common Stock shall be equal in number. (iii) Conversion of High Vote Common Stock. (A) Optional Conversion by the Holder. Each holder of High Vote Common Stock shall be entitled to convert, at any time and from time to time, any or all of the shares of such holder's High Vote Common Stock on a one-for-one basis, into the same number of fully paid and non-assessable shares of Class A Common Stock. Such right shall be exercised by the surrender to the Corporation of the certificate or certificates representing the shares of High Vote Common Stock to be converted at any time during normal business hours at the principal executive offices of the Corporation or at the office of the Corporation's transfer agent (the "Transfer Agent"), accompanied by a written notice of the holder of such shares stating that such holder desires to convert such shares, or a stated number of the shares represented by such certificate or certificates, into an equal number of shares of Class A Common Stock, and (if so required by the Corporation or the Transfer Agent) by instruments of transfer, in form satisfactory to the Corporation and to the Transfer Agent, duly executed by such holder or such holder's duly authorized attorney, and transfer tax stamps or funds therefor, if required pursuant to Article FOURTH, Clause (b)(iii)(H) below. (B) Automatic Conversion Upon Transfer. (1) Each share of High Vote Common Stock transferred, directly or indirectly, by one or more Parent Entities (or any Permitted Transferee) to one or more Persons other than a Permitted Transferee shall automatically convert into one (1) fully paid and non-assessable share of Class A Common Stock upon such disposition, provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of any High Vote Common Stock by a Parent Entity so long as the applicable Parent Entity continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. Notwithstanding the foregoing, any share of High Vote Common Stock transferred by a Parent Entity (or any Permitted Transferee) pursuant to the provisions of the preceding sentence shall, if such transfer is to any Person other than a Parent Entity or a Wholly Owned Affiliate of a Parent Entity, automatically convert into one (1) fully paid and non-assessable share of Class A Common Stock (A) upon such transfer, unless the applicable Parent Entity obtains from such transferee a voting agreement and voting proxy, each in form and substance satisfactory to the Corporation and the other Parent Entity (if such other Parent Entity then holds any High Vote Stock), pursuant to which the transferee agrees to grant to the appropriate Parent Entity the right to vote all shares of High Vote Common Stock transferred to such Person, such vote to be at the sole discretion of the appropriate Parent Entity, (B) upon the termination of, or the occurrence of any event invalidating or modifying in any material respect the voting provisions contained in, any voting agreement or voting proxy entered into pursuant to the provisions of the preceding Clause (A), and (C) solely with respect to a transfer to an Employee of a Parent Entity and/or one or more Cisneros Family members, if (i) such transfer (1) with respect to transfers by AOL and its Permitted Transferees, either individually or when aggregated with all prior transfers of Series D Preferred Stock and High Vote Stock to Employees of AOL, exceeds 20,371,667 shares (as such number shall be equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction, and assuming for purposes of such calculation that (x) all shares of Series D Preferred Stock so transferred are converted into High Vote Common Stock at the Series D Conversion Ratio and (y) all shares of High Vote Preferred Stock so transferred are converted into High Vote Common Stock at the applicable Conversion Ratio) and (2) with respect to transfers by ODC and its Permitted Transferees, either individually or when aggregated with all prior transfers of Series E Preferred Stock and High Vote Stock to Employees of ODC and Cisneros Family members, exceeds 19,972,382 shares (as such number shall be equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction, and assuming for purposes of such calculation that (x) all shares of Series E Preferred Stock so transferred are converted into High Vote Common Stock at the Series E Conversion Ratio and (y) all shares of High Vote Preferred Stock so transferred are converted into High Vote Common Stock at the applicable Conversion Ratio) or (ii) such person ceases to be an Employee of the transferring Parent Entity. For purposes of the foregoing, AOL shall be the appropriate Parent Entity with respect to any transfers of Class B Common Stock, Series B Preferred Stock or Series D Preferred Stock and ODC shall be the appropriate Parent Entity with respect to any transfers of Class C Common Stock, Series C Preferred Stock or Series E Preferred Stock. A copy of every voting agreement and voting proxy entered into in accordance with the provisions hereof, and all amendments thereto or modifications thereof, must be filed with the Corporation promptly after its execution. Notwithstanding the foregoing, (y) if any Permitted Transferee ceases to qualify as a Permitted Transferee at anytime following the transfer of the High Vote Common Stock, then each share of the High Vote Common Stock transferred to such Permitted Transferee shall automatically convert, at the time that the transferee ceases to so qualify, into one (1) fully paid and non-assessable share of Class A Common Stock; and (z) no transfer of High Vote Common Stock may be made, and any such transfer shall not be deemed to be valid by the Corporation, if such transfer would, when combined with all other transfers of such High Vote Common Stock previously consummated, require the Corporation to register the Class B Common Stock and/or Class C Common Stock under the Securities Exchange Act of 1934, as amended. Determinations as to the occurrence of events listed in this Clause (b)(iii)(B) of Article FOURTH shall be made by a majority of the Board of Directors, subject to the provisions of Clause (c) of Article FIFTH regarding the approval of actions with stockholders. (2) In addition, if any Person other than a Permitted Transferee otherwise acquires any direct or indirect ownership interest in a share of High Vote Common Stock, such share of High Vote Common Stock automatically shall convert into one (1) fully paid and non-assessable share of Class A Common Stock upon such Person acquiring such ownership interest, provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of any Class B Common Stock or Class C Common Stock by a Parent Entity or any Permitted Transferee so long as the appropriate Parent Entity continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. For purposes of the foregoing, AOL shall be the appropriate Parent Entity with respect to any pledges, hypothecations or other similar financing transactions with respect to any Class B Common Stock and ODC shall be the appropriate Parent Entity with respect to any pledges, hypothecations or other similar financing transactions with respect to any Class C Common Stock. (C) If at any time AOL, its Wholly Owned Affiliates and its Employees own less than 50,929,167 shares of Class B Common Stock in the aggregate (including shares of Class B Common Stock issuable upon conversion of then outstanding shares of Series B Preferred Stock, in each case as adjusted to negate any reduction in the number of shares of Class B Common Stock and/or Series B Preferred Stock owned by AOL resulting from the admission of a Strategic Partner approved by the Special Committee pursuant to Article FIFTH, Clause (d) and equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction) (a "Class B Triggering Event"), then each share of Class B Common Stock then issued and outstanding, including shares issuable upon the conversion of Series B Preferred Stock in connection with the occurrence of the Class B Triggering Event, shall thereupon be converted automatically as of such date into one (1) fully paid and non-assessable share of Class A Common Stock. Upon the determination by the Corporation that such automatic conversion has occurred, notice of such automatic conversion shall be given by the Corporation as soon as practicable thereafter by means of a press release and written notice to all holders of Class B Common Stock, and the Secretary of the Corporation shall be instructed to, and shall promptly, request from each holder of Class B Common Stock that each such holder promptly deliver, and each such holder shall promptly deliver, the certificate representing each such share of Class B Common Stock to the Corporation for exchange hereunder, together with instruments of transfer, in form satisfactory to the Corporation and the Transfer Agent, duly executed by such holder or such holder's duly authorized attorney, and together with transfer tax stamps or funds therefor, if required pursuant to Article FOURTH, Clause (b)(iii)(H) below. Effective upon a Class B Triggering Event, the term of any then serving Class B Directors shall terminate, and the size of the Board and any committee of the Board on which any such director serves shall be decreased by the number of Class B Directors then serving thereon. (D) If at any time ODC, its Wholly Owned Affiliates, members of the Cisneros Family and ODC Employees own less than 49,930,955 shares of Class C Common Stock in the aggregate (including shares of Class C Common Stock issuable upon conversion of then outstanding shares of Series C Preferred Stock, in each case as adjusted to negate any reduction in the number of shares of Class C Common Stock and/or Series C Preferred Stock owned by ODC resulting from the admission of a Strategic Partner approved by the Special Committee pursuant to Article FIFTH, Clause (d) and equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction) (a "Class C Triggering Event"), then each share of Class C Common Stock then issued and outstanding, including shares issuable upon the conversion of Series C Preferred Stock in connection with the occurrence of the Class C Triggering Event, shall thereupon be converted automatically as of such date into one (1) fully paid and non-assessable share of Class A Common Stock. Upon the determination by the Corporation that such automatic conversion has occurred, notice of such automatic conversion shall be given by the Corporation as soon as practicable thereafter by means of a press release and written notice to all holders of Class C Common Stock, and the Secretary of the Corporation shall be instructed to, and shall promptly, request from each holder of Class C Common Stock that each such holder promptly deliver, and each such holder shall promptly deliver, the certificate representing each such share of Class C Common Stock to the Corporation for exchange hereunder, together with instruments of transfer, in form satisfactory to the Corporation and the Transfer Agent, duly executed by such holder or such holder's duly authorized attorney, and together with transfer tax stamps or funds therefor, if required pursuant to Article FOURTH, Clause (b)(iii)(H) below. Effective upon a Class C Triggering Event, the term of any then serving Class C Directors shall terminate, and the size of the Board and any committee of the Board on which any such director serves shall be decreased by the number of Class C Directors then serving thereon. (E) As promptly as practicable following the surrender for conversion of a certificate representing shares of High Vote Common Stock in the manner provided in Article FOURTH, Clauses (b)(iii)(A), (B), (C) or (D) above, and the payment in cash of any amount required by the provisions of Article FOURTH, Clause (b)(iii)(H) below, the Corporation will deliver or cause to be delivered at the office of the Transfer Agent, a certificate or certificates representing the number of full shares of Class A Common Stock issuable upon such conversion, issued in such name or names as such holder may direct. Such conversion shall be deemed to have been effected immediately prior to the close of business on the date on which the event causing the conversion occurs. Upon the date any such conversion is deemed made or effected, all rights of the holder of such shares of High Vote Common Stock as such holder shall cease, and the person or persons in whose name or names the certificate or certificates representing the shares of Class A Common Stock are to be issued shall be treated for all purposes as having become the record holder or holders of such shares of Class A Common Stock; provided, however, that if any such surrender and payment occurs on any date when the stock transfer books of the Corporation shall be closed, the person or persons in whose name or names the certificate or certificates representing shares of Class A Common Stock are to be issued shall be deemed the record holder or holders thereof for all purposes immediately prior to the close of business on the next succeeding day on which the stock transfer books are open. (F) Upon any reclassification or other similar transaction that results in the shares of Class A Common Stock being converted into or exchanged for another security, holders of High Vote Common Stock shall be entitled to receive upon conversion or exchange of such High Vote Common Stock the amount of such security that such holder would have received if such conversion or exchange had occurred immediately prior to the record date of such reclassification or other similar transaction. No adjustments in respect of dividends shall be made upon the conversion or exchange of any share of High Vote Common Stock; provided, however, that if a share of High Vote Common Stock shall be converted or exchanged subsequent to the record date for the payment of a dividend or other distribution on shares of High Vote Common Stock but prior to such payment, then the registered holder of such share at the close of business on such record date shall be entitled to receive the dividend or other distribution payable on such share on such date notwithstanding the conversion or exchange thereof or the default in payment of the dividend or distribution due on such date. (G) The Corporation covenants that it shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock solely for the purpose of issuance upon conversion of the outstanding shares of High Vote Stock, such number of shares of Class A Common Stock that shall be issuable upon the conversion of all such outstanding shares of High Vote Stock; provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the conversion of the outstanding shares of High Vote Stock by delivery of purchased shares of Class A Common Stock which are held in the treasury of the Corporation. The Corporation covenants that if any shares of Class A Common Stock require registration with or approval of any Governmental Authority under any federal or state law before such shares of Class A Common Stock may be issued upon conversion of any High Vote Stock, the Corporation shall cause such shares to be duly registered or approved, as the case may be. The Corporation shall use its best efforts to list or otherwise qualify for trading the shares of Class A Common Stock required to be delivered upon conversion or exchange prior to such delivery upon each national securities exchange, automated quotation system or other market upon which the outstanding Class A Common Stock is listed or qualified for trading at the time of such delivery. The Corporation covenants that all shares of Class A Common Stock that shall be issued upon conversion of the shares of High Vote Stock will, upon issue, be validly issued, fully paid and non-assessable. (H) The issuance of certificates for shares of Class A Common Stock upon conversion of shares of High Vote Common Stock shall be made without charge to the holders of such shares for any stamp or other similar tax in respect of such issuance; provided, however, that if any such certificate is to be issued in a name other than that of the holder of the share or shares of High Vote Common Stock being converted, then the Person or Persons requesting the issuance thereof shall pay to the Corporation the amount of any tax that may be payable in respect of any transfer involved in such issuance or shall establish to the satisfaction of the Corporation that such tax has been paid or is not payable. (I) Shares of High Vote Common Stock that are converted into shares of Class A Common Stock as provided herein shall continue to be authorized shares of Class B Common Stock or Class C Common Stock, as the case may be, and available for reissue by the Corporation; provided, however, that no shares of High Vote Common Stock shall be reissued except as expressly permitted by Article FOURTH, Clause (b)(ii) above or Article FOURTH, Clause (b)(iv) below. (iv) Stock Splits. The Corporation shall not in any manner subdivide (by any stock split, stock dividend, reclassification, recapitalization or otherwise) or combine (by reverse stock split, reclassification, recapitalization or otherwise) the outstanding shares of one class of Common Stock unless the outstanding shares of all classes of Common Stock shall be proportionately subdivided or combined. (v) Liquidation Rights. Upon any dissolution, liquidation or winding-up of the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for payment of the debts and other liabilities of the Corporation and after making provision for the holders of the High Vote Preferred Stock and each additional series of Preferred Stock, if any then outstanding, the remaining assets and funds of the Corporation, if any, shall be divided among and paid to the respective holders of the Common Stock and High Vote Preferred Stock ratably in proportion to the number of shares of Common Stock they then hold assuming, for purposes of such calculation, that all outstanding shares of High Vote Preferred Stock are converted into shares of High Vote Common Stock at the then applicable Conversion Ratio as of the date immediately preceding such distribution. (vi) No Preemptive Rights. The holders of shares of Common Stock are not entitled to any preemptive right to subscribe for, purchase or receive any part of any new or additional issue of stock of any class, whether now or hereafter authorized, or of bonds, debentures or other securities convertible into or exchangeable for stock. (c) Preferred Stock. Subject to the voting and approval procedures set forth in Article FOURTH, clause (b) and Article FIFTH, Clause (d) of this Certificate of Incorporation and in Article III of the By-laws, the Board is hereby expressly granted authority to authorize in accordance with law from time to time the issue of one or more series of Preferred Stock in addition to the Series B Preferred Stock and Series C Preferred Stock, and with respect to any such series to fix by resolution or resolutions the numbers of shares, powers, designations, preferences and relative, participating, optional or other special rights of such series and the qualifications, limitations or restrictions thereof and to establish the price and consideration to be received therefor, as well as all other matters applicable thereto as may be fixed or established pursuant to any such resolution in accordance with the provisions of the GCL. The preferences, privileges and restrictions granted to or imposed upon the Series B Preferred Stock and Series C Preferred Stock, or the holders thereof, are as follows: (i) Designation and Amount. (A) Series B Preferred Stock. The number of shares constituting the Series B Preferred Stock shall be 150,000,000 (One Hundred Fifty Million). Such number of shares may be increased or decreased in accordance with the other provisions of this Article FOURTH, provided, however, that no decrease shall reduce the number of shares of Series B Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation and convertible into or exchangeable for Series B Preferred Stock. (B) Series C Preferred Stock. The number of shares constituting the Series C Preferred Stock shall be 150,000,000 (One Hundred Fifty Million). Such number of shares may be increased or decreased in accordance with the other provisions of this Article FOURTH, provided, however, that no decrease shall reduce the number of shares of Series C Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation and convertible into or exchangeable for Series C Preferred Stock. (C) Pursuant to the authority conferred by this Article FOURTH, the following series of Preferred Stock have been designated, each such series consisting of such number of shares, with such powers and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof as are stated and expressed in the exhibit with respect to such series attached hereto as specified below and incorporated herein by reference: Exhibit A Series D Redeemable Convertible Preferred Stock and Series E Redeemable Convertible Preferred Stock Each share of the Series D Convertible Redeemable Preferred Stock (the "Series D Preferred Stock"), outstanding on the date hereof has, on the date hereof, been converted into shares of Series B Preferred Stock, and each share of the Series E Convertible Redeemable Preferred Stock (the "Series E Preferred Stock"), outstanding on the date hereof has, on the date hereof, been converted into shares of Series C Preferred Stock, each in the manner and at the conversion ratios set forth in Exhibit A. (ii) Dividends and Distributions. (A) Preferred Stock Dividends. Subject to the GCL and the provisions of this Certificate of Incorporation, the holders of shares of High Vote Preferred Stock, in preference to the holders of shares of Common Stock and of any other capital stock of the Corporation ranking junior to the High Vote Preferred Stock as to payment of dividends, shall be entitled to receive, when and as declared by the Board, out of funds legally available therefor, cumulative dividends at the annual per share rate of three percent (3%) of the per share Liquidation Preference. Dividends on each share of High Vote Preferred Stock shall accrue daily from the date of issuance of such share of High Vote Preferred Stock; provided, that if any shares of any series of High Vote Preferred Stock have been or are issued upon conversion of any other share of capital stock of the Corporation (including without limitation the Series D Preferred Stock and the Series E Preferred Stock), and any dividends are then accrued on such converted shares, there shall be deemed accrued on each share of such series of High Vote Preferred Stock an additional amount equal to the aggregate of such accrued dividends on such other shares of capital stock divided by the total number of shares of such series of High Vote Preferred Stock outstanding immediately following such conversion. All such dividends shall be payable annually in arrears; provided, that each such dividend shall not be payable in cash, and instead shall be payable solely in additional shares of the Corporation's Series B Preferred Stock and Series C Preferred Stock, as applicable, with the value of such additional shares equal, for such purposes, to the Fair Market Value, on the date of such dividends, of a share of Class A Common Stock which is ultimately issuable upon conversion of the High Vote Common Stock issuable upon conversion of the High Vote Preferred Stock. The amount of dividends payable for the initial dividend period and any period shorter than a full quarterly period during which shares are outstanding shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in the period in which payable. No fractional shares of High Vote Preferred Stock shall be issued in respect of any such dividend, and the number of shares issuable to any holder who otherwise would be issued a fractional share shall be rounded down to the nearest whole number of shares and the Corporation shall make a cash payment to such Holder in an amount equal to such fraction multiplied by the Fair Market Value of one share of Class A Common Stock multiplied by the then applicable Conversion Ratio. (B) Dividend Restrictions. Unless all accrued dividends on the High Vote Preferred Stock pursuant to this Clause (c)(ii) of Article FOURTH shall have been paid or declared, no dividend shall be paid or declared, and no distribution shall be made on any Common Stock or any class or series of capital stock ranking junior to the High Vote Preferred Stock. If dividends are declared with respect to the Common Stock or any class or series of capital stock ranking junior to the High Vote Preferred Stock and the foregoing condition is satisfied, then holders of High Vote Preferred Stock shall be entitled to receive a dividend equivalent to that which would have been payable had the High Vote Preferred Stock been converted into shares of Common Stock immediately prior to the record date for payment of the dividends on the Common Stock and no such dividend on Common Stock shall be paid unless and until such dividend also shall have been paid on the High Vote Preferred Stock. No dividends or other distributions shall be authorized, declared, paid or set apart for payment on any class or series of the Corporation's stock heretofore or hereafter issued ranking, as to dividends, on a parity with or junior to the High Vote Preferred Stock for any period unless full cumulative dividends have been, or contemporaneously are, authorized, declared or paid on the High Vote Preferred Stock. The restrictions contained in this Clause (c)(ii)(B) shall not apply to any dividend or distribution in respect of which an adjustment has been, or simultaneously is being, made pursuant to the provisions of Clause (c)(v)(D) of this Article FOURTH. (iii) Liquidation, Dissolution or Winding-Up. (A) Preferred Preference. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment of all amounts owing to holders of capital stock ranking senior to the High Vote Preferred Stock, the holders of shares of High Vote Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, before any payment shall be made to the holders of the Common Stock or any class or series of capital stock ranking junior to the High Vote Preferred Stock by reason of their ownership thereof, an amount of $2.7268 per share of Series B Preferred Stock and $2.7272 per share of Series C Preferred Stock (collectively, the "Liquidation Preference"), in each case plus an amount equal to all accrued but unpaid dividends, if any, to the date of winding up, whether or not declared ("Accrued Dividends"), on the High Vote Preferred Stock. If upon such liquidation, distribution or winding-up of the Corporation, whether voluntary or involuntary, the assets available to be distributed to the holders of High Vote Preferred Stock are insufficient to permit payment in full of the Liquidation Preference together with Accrued Dividends on the High Vote Preferred Stock to such holders, then such assets shall be distributed first, ratably among the holders of the Series B Preferred Stock until such time as they shall have received $0.5718 per share, and thereafter ratably among all of the holders of High Vote Preferred Stock in the ratio of $2.1550 plus full Accrued Dividends on the Series B Preferred Stock per share of Series B Preferred Stock and $2.7272 plus full Accrued Dividends on the Series C Preferred Stock per share of Series C Preferred Stock. (B) Remaining Liquidating Distribution. After payment or provision for payment of all debts and liabilities of the Corporation has been made and after payment in full of the liquidation preferences due and owing (i) to the holders of capital stock of the Corporation ranking senior to the High Vote Preferred Stock, if any, (ii) pursuant to Clause (c)(iii)(A) of Article FOURTH above, (iii) to the respective holders of any capital stock ranking on parity with the High Vote Preferred Stock, and (iv) to the respective holders of any capital stock ranking junior to the High Vote Preferred Stock (and any such parity stock) but senior to the Common Stock, or the Corporation shall have set aside funds sufficient for such payments in trust for the account of such holders so as to be available for such payment, all remaining assets available for distribution, if any, shall be distributed to the holders of the Common Stock and High Vote Preferred Stock and to the holders of any other stock ranking on a parity with the Common Stock, each ratably in proportion to the number of shares of Common Stock or such other parity stock they then hold, assuming, for purposes of such calculation, that all outstanding shares of High Vote Preferred Stock are converted into shares of High Vote Common Stock at the then applicable Conversion Ratio as of the date immediately preceding such distribution. (iv) Voting Rights. Each holder of shares of High Vote Preferred Stock shall be entitled to notice of every stockholders' meeting and to vote on any and all matters on which the Common Stock and/or High Vote Common Stock may be voted. Each share of High Vote Preferred Stock shall be entitled at any such meeting (or in connection with any consent to be executed in lieu of any such meeting) to the number of votes per share determined as if such share of High Vote Preferred Stock had been converted into shares of the class of High Vote Common Stock into which such High Vote Preferred Stock is then convertible at the then applicable Conversion Ratio. Unless otherwise provided in this Certificate of Incorporation or required by law, each holder of each series of High Vote Preferred Stock shall: (A) vote together with the holders of the class of High Vote Common Stock into which such High Vote Preferred Stock is then convertible, if any shares of such class of High Vote Common Stock are then outstanding, as a single class on all matters submitted to a vote of the holders of such class of High Vote Common Stock, including, without limitation the election of directors and with respect to the matters set forth in Clause (b)(i)(B) of this Article FOURTH, (B) vote as a separate class on all matters that would be submitted to a vote of the holders of the class of High Vote Common Stock into which such High Vote Preferred Stock is then convertible, if no shares of such class of High Vote Common Stock are then outstanding, and (C) vote together with the holders of Common Stock as a single class on all matters submitted to a vote of the holders of Common Stock generally. (v) Conversion. The holders of High Vote Preferred Stock shall have conversion rights as follows: (A) Right of Holder to Convert; Automatic Conversion. (1) Series B Preferred Stock. Each issued and outstanding share of Series B Preferred Stock shall initially be convertible, at the option of the holder thereof, at any time and without the payment of any additional consideration therefor, into one (1) fully paid and nonassessable share of Class B Common Stock (the "Series B Conversion Ratio"). The initial Series B Conversion Ratio shall be subject to adjustment (in order to adjust the number of shares of Class B Common Stock into which the Series B Preferred Stock is convertible) as herein provided. In addition, each issued and outstanding share of Series B Preferred Stock automatically shall be converted into shares of Class B Common Stock at the then applicable Series B Conversion Ratio upon the occurrence of a Class B Triggering Event. (2) Series C Preferred Stock. Each issued and outstanding share of Series C Preferred Stock shall initially be convertible, at the option of the holder thereof, at any time and without the payment of any additional consideration therefor, into one (1) fully paid and nonassessable share of Class C Common Stock (the "Series C Conversion Ratio"). The initial Series C Conversion Ratio shall be subject to adjustment (in order to adjust the number of shares of Class C Common Stock into which the Series C Preferred Stock is convertible) as herein provided. In addition, each issued and outstanding share of Series C Preferred Stock automatically shall be converted into shares of Class C Common Stock at the then applicable Series C Conversion Ratio upon the occurrence of a Class C Triggering Event. (3) Automatic Conversion Upon Transfer. Each share of High Vote Preferred Stock transferred, directly or indirectly, by one or more Parent Entities (or any Permitted Transferee) to one or more Persons other than a Permitted Transferee shall automatically upon such transfer convert into that number of fully paid and non-assessable shares of the High Vote Common Stock into which it is then convertible, at the then applicable Conversion Ratio, and each such share of High Vote Common Stock immediately and automatically thereafter shall convert into one (1) fully paid and non-assessable share of Class A Common Stock, provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of any High Vote Preferred Stock by a Parent Entity or any Permitted Transferee so long as the applicable Parent Entity continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. Notwithstanding the foregoing, any share of High Vote Preferred Stock transferred by a Parent Entity (or any Permitted Transferee) pursuant to the provisions of the preceding sentence shall, if such transfer is to any Person other than a Parent Entity or a Wholly Owned Affiliate of a Parent Entity, automatically convert into that number of fully paid and non-assessable shares of the High Vote Common Stock into which it is then convertible at the then applicable Conversion Ratio, and each such share of High Vote Common Stock immediately and automatically thereafter shall convert into one (1) fully paid and non-assessable share of Class A Common Stock (A) upon such transfer, unless the applicable Parent Entity obtains from such transferee a voting agreement and voting proxy, each in form and substance satisfactory to the Corporation and the other Parent Entity (if such other Parent Entity then holds any High Vote Stock), pursuant to which the transferee agrees to grant to the appropriate Parent Entity the right to vote all shares of High Vote Preferred Stock transferred to such Person at the sole discretion of the appropriate Parent Entity, (B) upon the termination of, or the occurrence of any event invalidating or modifying in any material respect the voting provisions contained in, any voting agreement or voting proxy entered into pursuant to the provisions of the preceding Clause (A), and (C) solely with respect to a transfer to an Employee of a Parent Entity and/or Cisneros Family members, if (i) such transfer, either individually or when aggregated with all prior transfers of Series E Preferred Stock, Series D Preferred Stock and High Vote Stock to Employees of such Parent Entity and/or Cisneros Family members, exceeds (1) with respect to transfers by AOL and its Permitted Transferees, either individually or when aggregated with all prior transfers of Series D Preferred Stock and High Vote Stock to Employees of AOL, exceeds 20,371,667 shares (as such number shall be equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction, and assuming for purposes of such calculation that (x) all shares of Series D Preferred Stock so transferred are converted into High Vote Common Stock at the Series D Conversion Ratio and (y) all shares of High Vote Preferred Stock so transferred are converted into High Vote Common Stock at the applicable Conversion Ratio) and (2) with respect to transfers by ODC and its Permitted Transferees, either individually or when aggregated with all prior transfers of Series E Preferred Stock and High Vote Stock to Employees of ODC and Cisneros Family members, exceeds 19,972,382 shares (as such number shall be equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction, and assuming for purposes of such calculation that (x) all shares of Series E Preferred Stock so transferred are converted into High Vote Common Stock at the Series E Conversion Ratio and (y) all shares of High Vote Preferred Stock so transferred are converted into High Vote Common Stock at the applicable Conversion Ratio) or (ii) such person ceases to be an Employee of the transferring Parent Entity. For purposes of the foregoing, AOL shall be the appropriate Parent Entity with respect to any transfers of Series B Preferred Stock, Class B Common Stock and Series D Preferred Stock and ODC shall be the appropriate Parent Entity with respect to any transfers of Series C Preferred Stock, Class C Common Stock and Series E Preferred Stock. A copy of every voting agreement and voting proxy entered into in accordance with the provisions hereof, and all amendments thereto or modifications thereof, must be filed with the Corporation promptly after the execution thereof. Notwithstanding the foregoing, (y) if any Permitted Transferee ceases to qualify as a Permitted Transferee at anytime following the transfer of the High Vote Preferred Stock, then each share of the High Vote Preferred Stock transferred to such Permitted Transferee shall automatically convert, at the time that the transferee ceases to so qualify, into that number of fully paid and non-assessable shares of the High Vote Common Stock into which it is then convertible at the then applicable Conversion Ratio, and each such share of High Vote Common Stock immediately and automatically thereafter shall convert into one (1) fully paid and non-assessable share of Class A Common Stock; and (z) no transfer of High Vote Preferred Stock may be made, and any such transfer shall not be deemed to be valid by the Corporation, if such transfer would, when combined with all other transfers of such High Vote Preferred Stock previously consummated, require the Corporation to register any of the Class B Securities and/or Class C Securities under the Securities Exchange Act of 1934, as amended. Determinations as to the occurrence of events listed in this Clause (c)(v)(A)(3) of Article FOURTH shall be made by a majority of the Board of Directors, subject to the provisions of Clause (c) of Article FIFTH regarding the approval of actions with stockholders. In addition, if any Person other than a Parent Entity, its Wholly Owned Affiliate, a Cisneros Family member or an Employee of ODC or AOL otherwise acquires any direct or indirect ownership interest in a share of High Vote Preferred Stock, such share of High Vote Preferred Stock automatically shall convert into that number of fully paid and non-assessable shares of the High Vote Common Stock into which it is then convertible at the then applicable Conversion Ratio, and each such share of High Vote Common Stock immediately and automatically thereafter shall convert into one (1) fully paid and non-assessable share of Class A Common Stock, in any event, upon such Person acquiring such ownership interest; provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of any High Vote Preferred Stock by a Parent Entity or any Permitted Transferee so long as the appropriate Parent Entity continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. For purposes of the foregoing, AOL shall be the appropriate Parent Entity with respect to any pledges, hypothecations or other similar financing transactions with respect to any Series B Preferred Stock and ODC shall be the appropriate Parent Entity with respect to any pledges, hypothecations or other similar financing transactions with respect to any Series C Preferred Stock. (B) Fractional Shares. No fractional shares of Class B Common Stock or Class C Common Stock shall be issued upon conversion of the Series B Preferred Stock or Series C Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to the product of such fraction multiplied by the then applicable Series B Conversion Ratio or Series C Conversion Ratio (rounded to the nearest whole cent), as the case may be, multiplied by the Fair Market Value. (C) Mechanics of Conversion. (1) In order for a holder of High Vote Preferred Stock to voluntarily convert shares of High Vote Preferred Stock into shares of High Vote Common Stock, such holder shall surrender the certificate or certificates for such shares of High Vote Preferred Stock, at the office of the transfer agent for the High Vote Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the High Vote Preferred Stock represented by such certificate or certificates. Such notice shall state such holder's name or the names of the nominees in which such holder wishes the certificate or certificates for shares of High Vote Common Stock to be issued and the number of shares of High Vote Preferred Stock to be converted. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The date of receipt of such certificates and notice by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) shall be the conversion date for a voluntary conversion, and the date of the Class B or Class C Triggering Event or other automatic conversion, as applicable, shall be the conversion date for an automatic conversion (each, a "Conversion Date") and each conversion shall be deemed effective as of the close of business on the applicable Conversion Date. The Corporation shall, as soon as practicable after a Conversion Date, issue and deliver at such office to such holder of converted High Vote Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of shares of High Vote Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of a share or, if a Class B or Class C Triggering Event or other automatic conversion has occurred, a certificate or certificates for the number of shares of Class A Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of a share. In case the number of shares of High Vote Preferred Stock represented by the certificate or certificates surrendered pursuant to Clause (c)(v)(A) of Article FOURTH exceeds the number of shares converted, the Corporation shall, upon such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series B Preferred Stock or Series C Preferred Stock represented by such certificate or certificates surrendered but not converted. Notwithstanding anything to the contrary contained herein, at any time that shares of Class A Common Stock are to be issued as a result of an event causing the conversion of High Vote Preferred Stock, the affected shares of High Vote Preferred Stock shall automatically convert into the applicable class of High Vote Common Stock and immediately thereafter convert into Class A Common Stock without the necessity of the Corporation delivering to the holder a certificate to evidence the issuance of the High Vote Common Stock being automatically converted into Class A Common Stock and the Corporation shall only be required to deliver the certificate evidencing such shares of Class A Common Stock. (2) The Corporation shall at all times when the High Vote Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the High Vote Preferred Stock, such number of its duly authorized shares of High Vote Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding High Vote Preferred Stock; provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the conversion or exchange of the outstanding shares of High Vote Preferred Stock by delivery of purchased shares of High Vote Common Stock which are held in the treasury of the Corporation. (3) All shares of High Vote Preferred Stock surrendered for conversion or deemed automatically converted, as applicable, as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices, to vote and to accrual of dividends shall immediately cease and terminate at the close of business on the Conversion Date (except only the right of the holders thereof to receive shares of the applicable class of Common Stock in exchange therefor) and any shares of High Vote Preferred Stock so converted shall be retired and canceled and shall not be reissued, and the Corporation from time to time shall take appropriate action to reduce the authorized shares of High Vote Preferred Stock accordingly. (4) Upon any such conversion, no adjustment to the then applicable Conversion Ratio shall be made for any declared but unpaid dividends on the shares of High Vote Preferred Stock surrendered for conversion or on the shares of Common delivered upon conversion. (D) Adjustments to Conversion Ratio. (1) Special Definitions: (aa) "Original Issue Date" shall mean August 7, 2000. (bb) "Additional Shares of Common Stock" shall mean all shares of Common Stock issued (or, pursuant to Clause (c)(v)(D)(2) of Article FOURTH, deemed to be issued) by the Corporation after the Original Issue Date. (2) Issue of Securities Deemed Issue of Additional Shares of Common Stock. If the Corporation at any time or from time to time after the Original Issue Date shall declare or pay any dividend or make any other distribution on the Common Stock payable in Common Stock or effect a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in Common Stock), then and in any such event, Additional Shares of Common Stock shall be deemed to have been issued: (y) in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend or distribution, or (z) in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective. If such record date shall have been fixed and such dividend shall not have been fully paid on the date fixed therefor, the adjustment previously made in the Conversion Ratio which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Conversion Ratio shall be adjusted pursuant to this Clause (c)(v)(D) of Article FOURTH as of the time of actual payment of such dividend. (3) Adjustment for Dividends, Distributions, Subdivisions, Combinations or Consolidations of Common Stock. (aa) Stock Dividends, Distributions or Subdivisions. If the Corporation shall issue Additional Shares of Common Stock in the manner described in Clause (c)(v)(D)(2) of Article FOURTH in a stock dividend, stock distribution or subdivision, the Conversion Ratio in effect immediately prior to such stock dividend, stock distribution or subdivision shall, concurrently with the effectiveness of such stock dividend, stock distribution or subdivision, be proportionately increased. (bb) Combinations or Consolidations. If the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock, the Conversion Ratio in effect immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately decreased. (E) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Ratio pursuant to Clause (c)(v)(D) of Article FOURTH, the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of High Vote Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of High Vote Preferred Stock, furnish or cause to be furnished to such holder a similar certificate setting forth (1) such adjustments and readjustments, (2) the Conversion Ratio then in effect, and (3) the number of shares of Class B Common Stock and/or Class C Common Stock and the amount, if any, of other property, that then would be received upon the conversion of a share of High Vote Preferred Stock. (F) Notice of Record Date. If any of the following events occur: (1) the Corporation declares a dividend (or any other distribution) on its Common Stock payable in Common Stock or other securities of the Corporation; (2) the Corporation subdivides or combines its outstanding shares of Common Stock; (3) there occurs or is proposed to occur any reorganization, recapitalization or reclassification of the Common Stock of the Corporation (other than a subdivision or combination of its outstanding shares of Common Stock or a stock dividend or stock distribution thereon), or of any consolidation or merger of the Corporation into or with another corporation, or of the sale of all or substantially all of the assets of the Corporation; or (4) the involuntary or voluntary liquidation, dissolution, or winding-up of the Corporation; then the Corporation shall cause to be filed at its principal office or at the office of the transfer agent of the Preferred Stock, and shall cause to be mailed to the holders of the High Vote Preferred Stock at their addresses as shown on the records of the Corporation or such transfer agent, at least fifteen (15) days prior to the record date specified in (aa) below or thirty days before the date specified in (bb) below, a notice stating the following information: (aa) the record date of such dividend, distribution, subdivision or combination, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, subdivision, or combination are to be determined, or (bb) the date on which such reclassification, consolidation, merger, sale, liquidation, dissolution or winding-up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, liquidation, dissolution or winding-up. (vi) Redemption. (A) Mandatory Redemption by the Corporation. The Corporation shall redeem out of funds legally available all of the then outstanding shares of High Vote Preferred Stock pursuant to this Clause (c)(vi)(A) of Article FOURTH at the Redemption Price (the "Mandatory Redemptions") pursuant to the following schedule: (1) on August 7, 2005, the Corporation shall redeem 87.80 % of the shares of each Series of High Vote Preferred Stock outstanding as of the date of the applicable Redemption Notice; and (2) on April 2, 2006, the Corporation shall redeem the remaining shares of each Series of High Vote Preferred Stock outstanding as of the date of the applicable Redemption Notice. Each such date is referred to herein as a "Redemption Date." Upon any Mandatory Redemption, the Corporation shall redeem from each holder of High Vote Preferred Stock then outstanding the applicable percentage or amount of each Series of High Vote Preferred Stock then held by such holder. The "Redemption Price" per share of High Vote Preferred Stock to be redeemed at each Mandatory Redemption shall mean an amount in cash or shares of Class A Common Stock (valued at its then Fair Market Value), at the Corporation's option, equal to the sum of the Liquidation Preference attributable to such share plus an amount equal to all accrued but unpaid dividends attributable to such share as of the applicable Redemption Date. (B) Mechanics of Redemption. (1) Mandatory Redemption. In order to effect a Mandatory Redemption, the Corporation shall send a notice (a "Redemption Notice") to the address of record for all holders of shares of High Vote Preferred Stock, which Redemption Notice shall: (aa) state that the Corporation is commencing a Mandatory Redemption, (bb) state the percentage of the then outstanding shares of each Series of High Vote Preferred Stock that will be redeemed, and (cc) state the Redemption Price, including the amount of accrued but unpaid dividends included in the Redemption Price and whether the Redemption Price will be paid in cash or shares of Class A Common Stock. Once the Redemption Notice is mailed to the holders at their addresses of record, the specified percentage of shares of each Series of High Vote Preferred Stock shall be subject to redemption on the Redemption Date; provided, that a holder of High Vote Stock may avoid any such Mandatory Redemption by converting on the applicable Redemption Date, a number of shares of High Vote Preferred Stock that equals or exceeds the applicable percentage of shares of such Series of High Vote Preferred Stock held by such holder as of the applicable Redemption Date. On each Redemption Date each holder of shares of High Vote Preferred Stock then outstanding and not so converted shall surrender the certificate or certificates evidencing such shares of High Vote Preferred Stock to be redeemed thereat, duly endorsed, at the office of the Corporation or of any transfer agent for the High Vote Preferred Stock, and the Corporation shall pay such holder the applicable Redemption Price and deliver to such Holder, without service charge, a new certificate or certificates of the applicable Series of High Vote Preferred Stock as requested by such holder in that aggregate number of shares as represents the portion of the certificate(s) so surrendered as to which a Mandatory Redemption has not been made. Each holder of High Vote Preferred Stock may, in connection with any Mandatory Redemption, elect which of the shares of High Vote Preferred Stock then held by such holder shall be submitted for redemption on the applicable Redemption Date so long the aggregate amount of shares so redeemed equals the amount called in respect of such Mandatory Redemption. All shares of High Vote Preferred Stock so redeemed shall no longer be deemed to be outstanding and all rights with respect to such shares, including without limitation the right to accrual of dividends, shall immediately cease and terminate at the close of business of the Corporation on the applicable Redemption Date (except only the right of the holders thereof to receive the Redemption Price in exchange therefor), notwithstanding that the certificates representing such shares of High Vote Preferred Stock shall not have been surrendered at the office of the Corporation or, if the Redemption Price is to be paid in shares of Class A Common Stock, that the certificates evidencing such shares of Class A Common Stock shall not then be actually delivered to such holder. If the Redemption Price is to be paid in shares of Class A Common Stock, each holder of shares of High Vote Preferred Stock to be redeemed shall give written notice to the Corporation that shall state therein the name of such holder or the name or names of the nominees of such holder in which such holder wishes the certificate or certificates for shares of Class A Common Stock to be issued, and the person or persons entitled to receive the shares of Class A Common Stock issuable upon redemption shall be treated for all purposes as the record holder or holders of such shares of Class A Common Stock on the Redemption Date. No fractional shares of Class A Common Stock shall be issued upon redemption of any shares of High Vote Preferred Stock and cash in lieu of any fraction of a share will be paid to the holder thereof. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of High Vote Preferred Stock, or to such holder's nominee or nominees, a certificate or certificates for the number of shares of Class A Common Stock to which such holder shall be entitled as aforesaid. (2) Election to Convert. Notwithstanding the issuance of any Redemption Notice by the Corporation or the receipt of any Redemption Notice by any holder of High Vote Preferred Stock, such holder may elect to convert such High Vote Preferred Stock into the applicable class of High Vote Common Stock at any time prior to close of business of the Corporation on the Redemption Date. Any such conversion shall be at the then applicable Conversion Ratio and on the other terms and conditions set forth in Article FOURTH, Clause (c)(v). (vii) Reacquired Shares. Any shares of High Vote Preferred Stock converted, redeemed, purchased, or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after the acquisition thereof, and shall not be reissued and shall, upon the filing of a certificate of retirement, return to the status of authorized but undesignated shares of Preferred Stock. FIFTH: Directors. (a) Vacancies in the Board; Transaction of Business. Except as provided in Article FOURTH, Clause (b)(iii)(C) and (D), any vacancies resulting from death, resignation, disqualification, removal or other cause with respect to a Class A Director shall be filled by the affirmative vote of the remaining Class A Directors then in office, even if less than a quorum of the Board, subject to the approval of the Special Committee of the person or persons selected to fill the vacancy or vacancies. Any vacancies resulting from death, resignation, disqualification, removal or other cause with respect to a Class B Director shall be filled only by the affirmative vote of the remaining Class B Directors then in office, even if less than a quorum of the Board, or by the sole remaining Class B Director, if there is only one then in office. In the absence of a sole remaining Class B Director, such vacancies shall be filled by a majority vote of the holders of the Class B Securities, voting together as a single class. Any vacancies resulting from death, resignation, disqualification, removal or other cause with respect to a Class C Director shall be filled only by the affirmative vote of a majority of the remaining Class C Directors then in office, even if less than a quorum of the Board, or by the sole remaining Class C Director, if there is only one then in office. In the absence of a sole remaining Class C Director, such vacancies shall be filled by a majority vote of the holders of the Class C Securities, voting together as a single class. Any director elected in accordance with this Clause (a) shall hold office until the next annual meeting of stockholders. Notwithstanding any provision in the By-laws to the contrary, the Board may not transact business at any meeting of the Board unless a majority of the Class B Directors and a majority of the Class C Directors are present or otherwise participate at such meeting. Notwithstanding the foregoing, the preceding sentence shall be of no further force and effect upon the first to occur of (i) a Class B Triggering Event and (ii) a Class C Triggering Event. (b) Removal of Directors. (i) Any Class B Director and any Class C Director may be removed from office for cause only by the affirmative vote of the holders of at least seventy five percent (75%) of the voting power of the Voting Stock, voting together as a single class. (ii) Any Class A Director may be removed at any time, without cause, by the affirmative vote of the holders of at least a majority of the voting power of the Voting Stock, voting together as one class. Any Class B Director may be removed at any time, without cause, by majority vote of the holders of the Class B Securities, voting together as a single class. Any Class C Director may be removed at any time, without cause, by majority vote of the holders of the Class C Securities, voting together as a single class. (c) Approval of Actions with Stockholders. Notwithstanding anything to the contrary contained herein or in the By-laws, the power to take the following actions, as permitted by Section 141(a) of the GCL ("Section 141(a)"), is hereby conferred upon certain members of the Board, as indicated below: (i) The power to authorize any action by or on behalf of the Corporation with respect to the execution, delivery, or termination of any agreement between AOL (or any of its Affiliates) and the Corporation is hereby conferred upon the members of the Board other than the Class B Directors. All such authorizations or actions requiring Board approval with respect to matters relating to the enforcement or waiver of any rights granted the Corporation (or any of its Affiliates) under any such agreement shall be taken solely pursuant to the direction of a majority of such members of the Board without the approval, consent or authorization of the Class B Directors. Sections 3.7 and 3.8 of the By-laws shall apply to such actions as if such members constituted the Board. Notwithstanding the foregoing, however, the Class B Directors shall be entitled to vote on any matter specified in Clauses (d)(i)(K) or (d)(i)(L) of this Article FIFTH regardless of the interest of AOL or any of its Affiliates in such matter. (ii) The power to authorize any action by or on behalf of the Corporation with respect to the execution, delivery, or termination of any agreement between ODC (or any of its Affiliates) and the Corporation is hereby conferred upon the members of the Board other than the Class C Directors. All such authorizations or actions requiring Board approval with respect to matters relating to the enforcement or waiver of any rights granted the Corporation (or any of its Affiliates) under any such agreement shall be taken solely pursuant to the direction of a majority of such members of the Board without the approval, consent or authorization of the Class C Directors. Sections 3.7 and 3.8 of the By-laws shall apply to such actions as if such members constituted the Board. (d) Appointment and Powers of Special Committee. (i) There is hereby established a two (2) member committee (the "Special Committee") consisting of one (1) Class B director to be elected by a majority vote of the Class B directors (or the sole remaining Class B director) and one Class C director to be elected by majority vote of the Class C directors (or the sole remaining Class C director). The Special Committee, and not the Board of Directors, shall, in accordance with Section 141(a), have the power to select two Co-Chairmen of the board, provided that the Class B director on the Special Committee and the Class C Director on the Special Committee shall each be entitled to select and appoint one person as a Co-Chairman of the board. The Special Committee, together with the Board of Directors, shall, pursuant to Section 141(a), exercise the powers and duties conferred and imposed upon the board of directors by the GCL as provided for herein. The Special Committee shall evaluate the matters set forth in clauses (A) through (Z) of this Clause (d)(i) of Article FIFTH and report to the Board of Directors for approval those matters specified herein which have been approved by the two members of the Special Committee. The Corporation shall not have the power to take any action set forth in clauses (A) through (Z) of this Article FIFTH, Clause (d)(i), as the same may be amended from time to time, unless and until such action has been approved by the two members of the Special Committee acting in good faith and the best interest of the Corporation in accordance with Delaware law, except to the extent that both members of the Special Committee have waived such right of approval. The powers (including powers of delegation) and duties conferred and imposed upon the board of directors by the GCL (i) with respect to any matter set forth in clauses (A) through (Z) of this Article FIFTH, Clause (d)(1) that the Special Committee has either approved or with respect to which it has waived its right of approval, and (ii) with respect to any matter not set forth in clauses (A) through (Z) of this Article FIFTH, Clause (d)(1), shall be exercised by the Board of Directors. Notwithstanding any provision in the By-laws to the contrary, the Special Committee may not transact business at any meeting of the Special Committee unless both members of the Special Committee are present or otherwise participate at such meeting. Notwithstanding the foregoing, the preceding sentence shall be of no further force and effect upon the first to occur of (i) a Class B Triggering Event and (ii) a Class C Triggering Event. (A) Any amendment, change or other modification or restatement of this Certificate of Incorporation or By-laws of the Corporation or similar constitutive documents of any Subsidiary, or the Stockholders' Agreement or the Registration Rights Agreement. (B) The merger, consolidation, dissolution or liquidation of the Corporation or any Subsidiary, or any transaction having the same effect. (C) Except pursuant to (1) employee stock option and similar incentive plans approved by the Board and the holders of a majority of each class of High Vote Stock then outstanding, (2) a conversion or exchange right set forth in this Certificate of Incorporation or similar constitutive documents of any Subsidiary, or (3) the Stockholders' Agreement, the issuance, authorization, cancellation, alteration, modification, redemption or any change in, of, or to, any equity security of the Corporation or any Subsidiary, or any option, put, call or warrant with respect to the foregoing. (D) The transfer or other disposition of, or placing any Encumbrance (other than Permitted Encumbrances) on, any material asset of the Corporation or any Subsidiary (other than disposition of inventory or obsolete assets of the Corporation or any Subsidiary). (E) Any transaction involving (1) the acquisition of any interest in, or the making of any loan or extension of credit to, another person or entity by the Corporation or any Subsidiary for or in an amount in excess of $50,000 except for short-term cash management with recognized money market institutions; (2) any contracts having a term in excess of one year (including network, customer, marketing or advertising services) and involving payments by the Corporation or any Subsidiary, or rendering of services by the Corporation or any Subsidiary with a value, in excess of $50,000; (3) any debt, loan or borrowing of the Corporation or any Subsidiary (other than borrowings under revolving credit facilities approved by the Board) $50,000 outstanding in the aggregate at any time, or any revolving credit facility of the Corporation or any Subsidiary permitting aggregate borrowings at any one time outstanding to exceed $50,000; (4) the Corporation or any Subsidiary as a result of which the Corporation or any Subsidiary, alone or with its Affiliates, acquires control over any other person or entity; (5) any capital or other expenditures of the Corporation or any Subsidiary (or series of related capital expenditures) in excess of $50,000; or (6) any related series or combination of transactions having or which will have, directly or indirectly, the same effect as any of the foregoing. (F) Any action by, in respect of or otherwise involving any entity in which the Corporation or any Subsidiary has or acquires a controlling equity interest which would require Special Committee approval under this Clause (d)(i) of Article FIFTH if such action was by, in respect of, or otherwise involving the Corporation or any Subsidiary. (G) The declaration of any dividend or distribution on any class or classes of equity securities of the Corporation. (H) The selection of nominees to be recommended by the Board for election as Class A Directors. (I) The admission of any Strategic Partner as an equity holder in the Corporation or any Operating Entity. (J) The establishment and maintenance of an Executive Committee and the establishment and maintenance of, or appointment or removal of any member of, any other committee of the Board of Directors. (K) The Launch of any AOL-branded TV Access Service or Wireless Access Service in any country within the Territory. (L) The terms and conditions of any agreements with, or any other transactions with, and the conduct and settlement of any Action involving, any third parties relating to TV Access Services or Wireless Access Services in the Territory. (M) The appointment or dismissal of auditors for the Corporation or any Subsidiary or change or adoption of any material accounting principle or practice to be applied by the Corporation or any Subsidiary. (N) The establishment of any entity (or the creation of any entity owned jointly with any other party) by the Corporation or any Subsidiary and the adoption of, and any material changes to, any Subsidiary's method of doing business. (O) The commencement of any Action (without regard to the amount in controversy) or settlement of any Action to which the Corporation or any Subsidiary is a party or the subject thereof (i) involving amounts in excess of $100,000 (or its equivalent in any other currency) or (ii) which could materially adversely affect the rights of AOL or ODC or any of their Subsidiaries of Affiliates; provided, however, that Actions relating to the collections of amounts due to the Corporation or any Subsidiary by third parties may be commenced or settled in the discretion of management. (P) The adoption of any strategic plan and business projections for the Corporation or any Subsidiary and approval, rescission or amendment of any strategic decision material to the conduct of the business of the Corporation or any Subsidiary. (Q) The adoption of any Business Plan for an Operating Entity and the approval of any modification of any line item or other provision in any Business Plan in respect of any Operating Entity. (R) The establishment of, or making any significant modification to, the investment and/or cash management policies of the Corporation or any Subsidiary. (S) The approval of the discontinuation of any material activity engaged in from time to time by the Corporation or any Subsidiary. (T) The approval of the entering into of any partnership, joint venture or consortium with any other Person by the Corporation or any Subsidiary. (U) The approval of any press releases or other public statements by the Corporation or any Subsidiary containing material non-public information. (V) The entry into agreements by the Corporation or any Subsidiary outside of the ordinary course of business. (W) The approval of the final annual audited consolidated financial statements of any Subsidiary. (X) The approval of the filing for bankruptcy of or any decision not to take action to prevent a filing for bankruptcy or not to oppose an involuntary filing for bankruptcy or other winding up of the Corporation or any Subsidiary. (Y) Adoption of any incentive or other employee benefit plan, or any executive compensation plan or severance payment, by the Corporation or any Subsidiary or any material amendment to any such existing plan. (Z) Hiring or firing any personnel of the Corporation or any Subsidiary with an annual salary in excess of $100,000 or increasing the compensation of any such personnel above $100,000. (ii) Upon the occurrence of a Class B Triggering Event or a Class C Triggering Event, the Special Committee shall be deemed to be dissolved as of such time, and the provisions of this Clause (d), other than those contained in this Clause (d)(ii), shall cease to have any effect, and any other provisions of this Certificate of Incorporation requiring the approval of the Special Committee shall be deemed to require the approval of the Board as a whole. (e) Appointment of Executive Committee. Subject to Clause (d) of this Article FIFTH, so long as there are at least one share of Class A Common Stock, one share of either of the Class B Securities and one share of either of the Class C Securities outstanding, the Board of Directors may, by the affirmative vote of a majority of the Directors designate an Executive Committee of the Board (the "Executive Committee"), which shall consist of one (1) Class A Director, one (1) Class B Director and one (1) Class C Director. The Executive Committee shall have such powers and duties as may be set forth in the resolution designating the Executive Committee as the same may be amended from time to time. If the minimum shares required for each of the Class A Common Stock, Class B Securities and Class C Securities are not outstanding, the Board may establish an Executive Committee with such members as it chooses. (f) Removal of Committee Members. In accordance with Section 141(a), notwithstanding anything to the contrary contained herein or in the By-laws, (i) any member of the Special Committee appointed or elected by the Class B Directors or the member of the Executive Committee who is a Class B Director may be removed at any time, either with or without cause, by the affirmative vote of (A) a majority of the Class B Directors then in office or (B) the holders of a majority of the Class B Securities, voting together as a single class, and (ii) any member of the Special Committee elected or appointed by the Class C Directors or the member of the Executive Committee who is a Class C Director may be removed at any time, either with or without cause, by the affirmative vote of (A) a majority of the Class C Directors then in office or (B) the holders of a majority of the Class C Securities, voting together as a single class. In addition, any member of the Executive Committee appointed pursuant to the first sentence of Article FIFTH, Clause (e) may be removed with or without cause after obtaining each of the following votes: (x) the affirmative vote of a majority of the Class A Directors (or the sole Class A Director), (y) the affirmative vote of a majority of the Class B Directors (or the sole Class B Director) and (z) the affirmative vote of a majority of the Class C Directors (or the sole Class C Director), even if less than a quorum of the Board. Any member of the Executive Committee appointed otherwise than pursuant to Article FIFTH, Clause (e) may be removed with or without cause by the affirmative vote of all of the directors then in office, even if less than a quorum of the Board. Any vacancies on any committee of the Board shall be filled in the manner set forth above in respect of the appointment of such committee or member. SIXTH: Subject to Clause (b)(i)(B) of Article FOURTH and Clause (d) of Article FIFTH, the Board may from time to time make, amend, supplement or repeal the By-laws by vote of a majority of the Board. Subject to Clause (b)(i)(B) of Article FOURTH, the stockholders may change or amend or repeal a provision of the By-laws only after obtaining each of the following votes: (i) the affirmative vote of the holders of a majority of the voting power of the issued and outstanding Voting Stock, voting as one class; (ii) if a Class B Director is then entitled to be a member of the Special Committee, the affirmative vote of the holders of a majority of the Class B Securities, voting together as a single class; and (iii) if a Class C Director is then entitled to be a member of the Special Committee, the affirmative vote of the holders of a majority of the Class C Securities, voting together as a single class. SEVENTH: Unless and except to the extent that the By-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. EIGHTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, provided that such action is approved in the manner, and otherwise complies with the requirements, set forth in this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, but subject to Clause (b)(i)(B) of Article FOURTH, the affirmative vote of the holders of at least seventy five percent (75%) of the voting power of the issued and outstanding Voting Stock, voting as one class, shall be required to amend or repeal this Certificate of Incorporation. NINTH: A director of the Corporation, including a director acting pursuant to Clauses (c) through (f) of Article FIFTH, shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the GCL; or (iv) for any transaction from which the director derived an improper personal benefit. If the GCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the GCL, as so amended. Any repeal or modification of this provision shall be prospective only and shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. TENTH: The Corporation, to the fullest extent permitted by Section 145 of the GCL, as the same may be amended and supplemented, shall indemnify all directors and officers of the Corporation, and may indemnify any and all other persons whom it shall have power to indemnify under said section, in any such event from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ELEVENTH: The provisions of Section 203 of the GCL shall not be applicable to the Corporation. IN WITNESS WHEREOF, America Online Latin America, Inc. has caused its corporate seal to be affixed hereto and this Restated Certificate of Incorporation, which restates, integrates and further amends the Restated Certificate of Incorporation of the Corporation, and which has been duly adopted by the stockholders and directors of the Corporation in accordance with Sections 242 and 245 of the GCL, to be signed by its _______________ as of the ____ day of _______, 2001. AMERICA ONLINE LATIN AMERICA, INC. By: ------------------------------- Name: Title: [SEAL] EX-4 5 0005.txt CERTIFICATE OF DESIGNATIONS Exhibit 4 CERTIFICATE OF DESIGNATIONS, PREFERENCES, AND RIGHTS OF THE SERIES D REDEEMABLE CONVERTIBLE PREFERRED STOCK AND THE SERIES E REDEEMABLE CONVERTIBLE PREFERRED STOCK OF AMERICA ONLINE LATIN AMERICA, INC. America Online Latin America, Inc., a Delaware corporation (the "Corporation"), does hereby certify that, pursuant to authority conferred on the Board of Directors of the Corporation by the Restated Certificate of Incorporation of the Corporation, as amended, and pursuant to the provisions of Section 151 of Title 8 of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation, by unanimous written consent in lieu of a meeting, dated as of March 30, 2001, duly adopted the following resolution providing for the designations, preferences and relative, participating, optional or other rights, and qualifications, limitations or restrictions thereof, of 50,000,000 shares of the Corporation's Preferred Stock, par value $.01 per share: RESOLVED: That pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation (the "Board"), by the provisions of the Restated Certificate of Incorporation, as amended, of the Corporation (the "Certificate of Incorporation"), the Board, out of the shares of Preferred Stock of the Corporation authorized in Article Fourth of the Certificate of Incorporation (the "Preferred Stock"), hereby designates two separate series of Preferred Stock consisting of 25,000,000 shares, par value $.01 per share, of the authorized and unissued Preferred Stock, as Series D Redeemable Convertible Preferred Stock (the "Series D Preferred Stock"), and 25,000,000 shares, par value $.01 per share, of the authorized and unissued Preferred Stock, as Series E Redeemable Convertible Preferred Stock (the "Series E Preferred Stock"), and hereby fixes such designations and number of shares, and the powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions thereof as set forth below, and that the officers of the Corporation, and each acting singly, are hereby authorized, empowered and directed to file with the Secretary of State of Delaware a Certificate of Designations, Preferences and Rights of the Series D Preferred Stock and the Series E Preferred Stock, as such officer or officers shall deem necessary or advisable to carry out the purposes of this Resolution. I. Series D Preferred Stock and Series E Preferred Stock. The preferences, privileges and restrictions granted to or imposed upon the Corporation's Series D Preferred Stock and the Corporation's Series E Preferred Stock, or the holders thereof, are set forth in this Certificate of Designations (this "Certificate"), and shall be as follows (terms with initial capital letters used in this Certificate without definition shall have the meanings given them in the Certificate of Incorporation): 1. Designation and Amount. (A) Series D Preferred Stock. There is hereby designated a series of Preferred Stock as the Series D Redeemable Convertible Preferred Stock (the "Series D Preferred Stock"). The number of shares constituting the Series D Preferred Stock shall be 25,000,000 (Twenty Five Million). Such number of shares may be increased or decreased in accordance with law and the provisions of Article FOURTH of the Certificate of Incorporation; provided, that no decrease shall reduce the number of shares of Series D Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation and convertible into or exchangeable for Series D Preferred Stock. (B) Series E Preferred Stock. There is hereby designated a series of Preferred Stock as the Series E Redeemable Convertible Preferred Stock (the "Series E Preferred Stock"). The number of shares constituting the Series E Preferred Stock shall be 25,000,000 (Twenty Five Million). Such number of shares may be increased or decreased in accordance with law and the provisions of Article FOURTH of the Certificate of Incorporation; provided, that no decrease shall reduce the number of shares of Series E Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation and convertible into or exchangeable for Series E Preferred Stock. 2. Dividends and Distributions. (A) Dividends. (i) Series D Preferred Stock. Subject to the GCL and the provisions of the Certificate of Incorporation, the holders of shares of Series D Preferred Stock shall be entitled to receive, in preference to the holders of any capital stock of the Corporation ranking junior to the Series D Preferred Stock as to payment of dividends, and pari passu with the holders of the Series E Preferred Stock and the holders of the shares of High Vote Preferred Stock, when and as declared by the Board, out of funds legally available therefor, cumulative dividends at the annual per share rate of three percent (3%) of the per share Series D Liquidation Preference (as defined below). Dividends on each share of the Series D Preferred Stock shall accrue daily from the date that such share of Series D Preferred Stock originally was issued, and shall be payable annually in arrears; provided, that such dividend shall not be payable in cash, and instead shall be payable solely in additional shares of Series D Preferred Stock with the value of such additional shares equal, for such purposes, to the Fair Market Value, on the payment date of such dividend, of the share or shares of Class A Common Stock which are issuable upon conversion of the Class B Common Stock issuable upon conversion of the Series D Preferred Stock at the then applicable Series D Conversion Ratio (as defined below). The amount of dividends payable for the initial dividend period and any period shorter than a full quarterly period during which shares of Series D Preferred Stock are outstanding shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in the period in which payable. No fractional shares of Series D Preferred Stock shall be issued in respect of any such dividend, and the number of shares issuable to any holder who otherwise would be issued a fractional share shall be rounded down to the nearest whole number of shares and the Corporation shall make a cash payment to such holder in an amount equal to such fraction multiplied by the Fair Market Value of one share of Class A Common Stock multiplied by the then applicable Series D Conversion Ratio. (ii) Series E Preferred Stock. Subject to the GCL and the provisions of the Certificate of Incorporation, the holders of shares of Series E Preferred Stock shall be entitled to receive, in preference to the holders of any capital stock of the Corporation ranking junior to the Series E Preferred Stock as to payment of dividends, and pari passu with the holders of the Series D Preferred Stock and the holders of the shares of High Vote Preferred Stock, when and as declared by the Board, out of funds legally available therefor, cumulative dividends at the annual per share rate of three percent (3%) of the per share Series E Liquidation Preference (as defined below). Dividends on each share of the Series E Preferred Stock shall accrue daily from the date that such share of Series E Preferred Stock originally was issued, and shall be payable annually in arrears; provided, that such dividend shall not be payable in cash, and instead shall be payable solely in additional shares of Series E Preferred Stock with the value of such additional shares equal, for such purposes, to the Fair Market Value, on the payment date of such dividend, of the share or shares of Class A Common Stock which are issuable upon conversion of the Class C Common Stock issuable upon conversion of the Series E Preferred Stock at the then applicable Series E Conversion Ratio (as defined below). The amount of dividends payable for the initial dividend period and any period shorter than a full quarterly period during which shares of Series E Preferred Stock are outstanding shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in the period in which payable. No fractional shares of Series E Preferred Stock shall be issued in respect of any such dividend, and the number of shares issuable to any holder who otherwise would be issued a fractional share shall be rounded down to the nearest whole number of shares and the Corporation shall make a cash payment to such holder in an amount equal to such fraction multiplied by the Fair Market Value of one share of Class A Common Stock multiplied by the then applicable Series E Conversion Ratio. (iii) Fair Market Value Defined. For purposes of this Certificate, "Fair Market Value" of a share of Class A Common Stock shall mean, as of any date, the higher of (A) the Fair Market Value thereof, as determined in accordance with the provisions of the Certificate of Incorporation and (B) $4.6875. (B) Dividend Restrictions. Unless all dividends accrued on the Series D Preferred Stock and the Series E Preferred Stock pursuant to this Section 2 shall have been paid or declared, no dividend shall be paid or declared, and no distribution shall be made, on any class or series of capital stock ranking junior as to dividends to the Series D Preferred Stock and the Series E Preferred Stock. If dividends are declared with respect to any class or series of capital stock ranking junior to the Series D Preferred Stock or the Series E Preferred Stock as to payment of dividends and the foregoing condition is satisfied, the holders of Series D Preferred Stock and the Series E Preferred Stock shall be entitled to receive a dividend equivalent to that which would have been payable had the Series D Preferred Stock been converted into shares of Class B Common Stock at the then applicable Series D Conversion Ratio and the Series E Preferred Stock been converted into shares of Class C Common Stock at the then applicable Series E Conversion Ratio, in each case immediately prior to the record date for payment of the dividends on the Common Stock, and no such dividend on any such junior stock shall be paid unless and until such dividend also shall have been paid on the Series D Preferred Stock and the Series E Preferred Stock. No dividends or other distributions shall be authorized, declared, paid or set apart for payment on any class or series of the Corporation's stock heretofore or hereafter issued ranking, as to dividends, on a parity with or junior to the Series D Preferred Stock and the Series E Preferred Stock for any period unless full cumulative dividends have been, or contemporaneously are, authorized, declared or paid on the Series D Preferred Stock and Series E Preferred Stock. The restrictions contained in this Section 2(B) shall not apply to any dividend or distribution in respect of which an adjustment has been, or simultaneously is being, made pursuant to the provisions of Section 5(C) below. 3. Liquidation, Dissolution or Winding-Up. (A) Series D Liquidation Preference. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment of all amounts owing to holders of capital stock ranking senior to the Series D Preferred Stock, the holders of shares of Series D Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, before any payment shall be made to the holders of the Series E Preferred Stock, High Vote Preferred Stock or any other class or series of capital stock ranking junior to the Series D Preferred Stock by reason of their ownership thereof, an amount of $4.6875 per share (collectively, the "Series D Liquidation Preference"). If upon such liquidation, distribution or winding-up of the Corporation, whether voluntary or involuntary, the assets available to be distributed to the holders of Series D Preferred Stock are insufficient to permit payment in full to such holders, then such assets shall be distributed ratably among the holders of Series D Preferred Stock. (B) Series E Liquidation Preference and Series D Accrued Dividend Liquidation Preference. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment of all amounts owing to holders of capital stock ranking senior to the Series E Preferred Stock, the holders of shares of Series E Preferred Stock and Series D Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, before any payment shall be made to the holders of the High Vote Preferred Stock or any other class or series of capital stock ranking junior to the Series E Preferred Stock by reason of their ownership thereof, (i) with respect to the holders of shares of Series E Preferred Stock, an amount of $4.6875 per share (collectively, the "Series E Liquidation Preference"), plus an amount equal, with respect to each share of Series E Preferred Stock, to all accrued but unpaid dividends, if any, to the date of winding-up, whether or not declared, on such share of Series E Preferred Stock and (ii) with respect to each holder of a share of Series D Preferred Stock, an amount per share equal to all accrued but unpaid dividends, if any, to the date of winding-up, whether or not declared, on such share of Series D Preferred Stock. If upon such liquidation, distribution or winding-up of the Corporation, whether voluntary or involuntary, the assets available to be distributed to the holders of Series E Preferred Stock and the Series D Preferred Stock are insufficient to permit payment in full to such holders, then such assets shall be distributed ratably among the holders of Series E Preferred Stock and the Series D Preferred Stock pro rata in proportion to the per share amounts payable pursuant to the provisions of the immediately preceding sentence. (C) Remaining Liquidating Distribution. After payment or provision for payment of all debts and liabilities of the Corporation has been made and after payment in full of the liquidation preferences due and owing (i) to the holders of capital stock of the Corporation ranking senior to the Series D Preferred Stock and Series E Preferred Stock, if any, (ii) pursuant to Sections 3(A) and 3(B) above, (iii) to the respective holders of any capital stock ranking on parity with the Series D Preferred Stock and/or Series E Preferred Stock, and (iv) to the respective holders of any capital stock ranking junior with the Series D Preferred Stock and/or Series E Preferred Stock (and any such parity stock) but senior to the Common Stock, or the Corporation shall have set aside funds sufficient for such payments in trust for the account of such holders so as to be available for such payment, the holders of the Series D Preferred Stock and the Series E Preferred Stock shall be entitled to receive, prior to any payment to the holders of the Common Stock, an amount equal to the amount that would be received by such holders if all remaining assets available for distribution, if any, were distributed to the holders of the Common Stock, High Vote Preferred Stock, Series D Preferred Stock and Series E Preferred Stock, and to the holders of any other stock ranking on a parity with the Common Stock, each ratably in proportion to the number of shares of Common Stock or such other parity stock they then hold, assuming, for purposes of such calculation, (1) that all outstanding shares of Series D Preferred Stock were converted into shares of Class A Common Stock at a conversion ratio equal to the then applicable Series D Conversion Ratio as of the date immediately preceding such distribution, (2) that all outstanding shares of Series E Preferred Stock were converted into shares of Class A Common Stock at a conversion ratio equal to the then applicable Series E Conversion Ratio as of the date immediately preceding such distribution and (3) all outstanding shares of High Vote Preferred Stock were converted into shares of Common Stock at the then applicable Conversion Ratio. 4. Voting Rights. Each holder of shares of Series D Preferred Stock and Series E Preferred Stock shall be entitled to notice of every stockholders' meeting and to vote on any and all matters on which the Common Stock may be voted. Each share of Series D Preferred Stock shall be entitled at any such meeting (or in connection with any consent to be executed in lieu of any such meeting) to the number of votes per share determined as if such share of Series D Preferred Stock had been converted into shares of Class A Common Stock at a conversion ratio equal to the then applicable Series D Conversion Ratio. Each share of Series E Preferred Stock shall be entitled at any such meeting (or in connection with any consent to be executed in lieu of any such meeting) to the number of votes per share determined as if such share of Series E Preferred Stock had been converted into shares of Class A Common Stock at a conversion ratio equal to the then applicable Series E Conversion Ratio. Except as otherwise required by law, the holders of Series D Preferred Stock and Series E Preferred Stock shall have no other voting rights. 5. Conversion. (A) Series D Preferred Stock. The holders of Series D Preferred Stock shall have conversion rights as follows: (i) Right of Holders to Convert; Automatic Conversion. (1) Series D Conversion Ratio. Each issued and outstanding share of Series D Preferred Stock shall initially be convertible, at the option of the holder thereof, at any time and without the payment of any additional consideration therefor, into one (1) fully paid and nonassessable share of Class B Common Stock (the "Series D Conversion Ratio"). The initial Series D Conversion Ratio shall be subject to adjustment (in order to adjust the number of shares of Class B Common Stock into which the Series D Preferred Stock is convertible) as herein provided. In addition, upon the occurrence of a Class B Triggering Event each issued and outstanding share of Series D Preferred Stock automatically shall be converted into Class A Common Stock at a conversion ratio equal to the then applicable Series D Conversion Ratio. (2) Automatic Conversion Upon Transfer. Each share of Series D Preferred Stock transferred, directly or indirectly, by AOL (or any Permitted Transferee) to one or more Persons other than a Permitted Transferee shall automatically upon such transfer convert into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series D Conversion Ratio, provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of Series D Preferred Stock by AOL or any Permitted Transferee so long as AOL continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. Notwithstanding the foregoing, any share of Series D Preferred Stock transferred by AOL (or any Permitted Transferee) pursuant to the provisions of the preceding sentence shall, if such transfer is to any Person other than AOL, ODC (as defined below), any Cisneros Family member or any Wholly Owned Affiliate of AOL or ODC, automatically convert into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series D Conversion Ratio (A) upon such transfer, unless AOL obtains from such transferee a voting agreement and voting proxy, each in form and substance satisfactory to the Corporation and ODC (if ODC then holds any High Vote Stock), pursuant to which such transferee agrees to grant to AOL the right to vote all shares of Series D Preferred Stock transferred to such transferee at the sole discretion of AOL, (B) upon the termination of, or the occurrence of any event invalidating or modifying in any material respect the voting provisions contained in, any voting agreement or voting proxy entered into pursuant to the provisions of the preceding clause (A), and (C) solely with respect to a transfer to an Employee of AOL, if (i) such transfer, either individually or when aggregated with all prior transfers of Series D Preferred Stock and High Vote Stock to Employees of AOL, exceeds 20,371,667 shares (as such number shall be equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction, and assuming for purposes of such calculation that (1) all shares of Series D Preferred Stock so transferred are converted into High Vote Common Stock at the Series D Conversion Ratio and (2) all shares of High Vote Preferred Stock so transferred are converted into High Vote Common Stock at the applicable Conversion Ratio) or (ii) such person ceases to be an Employee of AOL. A copy of every voting agreement and voting proxy entered into in accordance with the provisions hereof, and all amendments thereto or modifications thereof, must be filed with the Corporation promptly after the execution thereof. Notwithstanding the foregoing, (y) if any Permitted Transferee ceases to qualify as a Permitted Transferee at any time following the transfer of the Series D Preferred Stock, then each share of Series D Preferred Stock transferred to such Permitted Transferee shall automatically convert, at the time that the transferee ceases to so qualify, into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series D Conversion Ratio, and (z) no transfer of Series D Preferred Stock may be made, and any such transfer shall not be deemed to be valid by the Corporation, if such transfer would, when combined with all other transfers of such Series D Preferred Stock previously consummated, require the Corporation to register any of the Series D Preferred Stock under the Securities Exchange Act of 1934, as amended. Determinations as to the occurrence of events listed in this Section 5(A)(i)(2) shall be made by a majority of the Board, subject to the provisions of Clause (c) of Article FIFTH of the Certificate of Incorporation regarding the approval of actions with stockholders. In addition, if any Person other than AOL, ODC, any Cisneros Family Member or any Wholly Owned Affiliate of AOL or ODC otherwise acquires any direct or indirect ownership interest in a share of Series D Preferred Stock, such share of Series D Preferred Stock shall automatically convert into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series D Conversion Ratio, in any event, upon such Person acquiring such ownership interest; provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of any Series D Preferred Stock by AOL or any Permitted Transferee so long as AOL continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. (3) Automatic Conversion Upon Filing of Restated Certificate of Incorporation. Upon the filing by the Corporation with the Secretary of State of the State of Delaware of a Restated Certificate of Incorporation in the form attached as Exhibit I to the Stock Purchase Agreement, dated as of March 30, 2001, by and between the Corporation, AOL, Aspen Investments LLC, a Delaware limited liability company ("Aspen"), Atlantis Investments LLC, a Delaware limited liability company ("Atlantis"), and Banco Itau, S.A. - Cayman Branch, with such changes or amendments thereto as to which the parties to such Agreement may agree (the "Restated Certificate"), each issued and outstanding share of Series D Preferred Stock immediately and automatically thereafter shall convert into one (1) fully paid and non-assessable share of Series B Preferred Stock (as such ratio shall be equitably adjusted by the Board for any stock split, stock dividend, reverse stock split, reclassification or similar transaction). A copy of the Restated Certificate will be provided to any stockholder of the Corporation without charge upon the written request therefor. (ii) Fractional Shares. No fractional shares of Series B Preferred Stock, Class B Common Stock or Class A Common Stock, as applicable, shall be issued upon conversion of the Series D Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to the product of such fraction multiplied by the then applicable Series D Conversion Ratio multiplied by the then Fair Market Value. (iii) Mechanics of Conversion. (1) In order for a holder of Series D Preferred Stock to voluntarily convert shares of Series D Preferred Stock into shares of Class B Common Stock, such holder shall surrender the certificate or certificates for such shares of Series D Preferred Stock, at the office of the transfer agent for the Series D Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the Series D Preferred Stock represented by such certificate or certificates. Such notice shall state such holder's name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Class B Common Stock to be issued and the number of shares of Series D Preferred Stock to be converted. The date of receipt of such certificates and notice by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) shall be the conversion date for a voluntary conversion, and the date of the Class B Triggering Event or other automatic conversion, as applicable, shall be the conversion date for an automatic conversion (each, a "Series D Conversion Date"), and each conversion shall be deemed effective as of the close of business on the applicable Series D Conversion Date. The Corporation shall, as soon as practicable after (i) a Series D Conversion Date and (ii) receipt of the certificate or certificates representing the shares of Series D Preferred Stock converted on such Series D Conversion Date, issue and deliver at such office to such holder of converted Series D Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of shares of Class B Common Stock or Series B Preferred Stock, as applicable, to which such holder shall be entitled, together with cash in lieu of any fraction of a share or, if a Class B Triggering Event or other automatic conversion has occurred, a certificate or certificates for the number of shares of Class A Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of a share. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. If the number of shares of Series D Preferred Stock represented by the certificate or certificates surrendered pursuant to this Section exceeds the number of shares being converted, the Corporation shall, upon such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series D Preferred Stock represented by such certificate or certificates surrendered but not converted. (2) The Corporation shall at all times when the Series D Preferred Stock is outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the Series D Preferred Stock, such number of its duly authorized shares of Series B Preferred Stock, Class B Common Stock and Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series D Preferred Stock; provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the conversion or exchange of the outstanding shares of Series D Preferred Stock by delivery of purchased shares of Series B Preferred Stock, Class B Common Stock and/or Class A Common Stock, as applicable, which are held in the treasury of the Corporation. (3) All shares of Series D Preferred Stock surrendered for conversion or deemed automatically converted, as applicable, as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices, to vote and to accrue dividends shall immediately cease and terminate at the close of business on the applicable Series D Conversion Date (except only the right of the holders thereof to receive shares of Class A Common Stock, Class B Common Stock or Series B Preferred Stock, as applicable, in exchange therefor) and any shares of Series D Preferred Stock so converted shall be retired and canceled and shall not be reissued, and the Corporation from time to time shall take appropriate action to reduce the authorized shares of Series D Preferred Stock accordingly. (4) Upon any such conversion, no adjustment to the then applicable Series D Conversion Ratio shall be made for any declared but unpaid dividends on the Series D Preferred Stock surrendered for conversion or on the Class A Common Stock, Class B Common Stock or Series B Preferred Stock, as applicable, delivered upon conversion. (B) Series E Preferred Stock. The holders of Series E Preferred Stock shall have conversion rights as follows: (i) Right of Holder to Convert; Automatic Conversion. (1) Series E Conversion Ratio. Each issued and outstanding share of Series E Preferred Stock shall initially be convertible, at the option of the holder thereof, at any time and without the payment of any additional consideration therefor, into one (1) fully paid and nonassessable share of Class C Common Stock (the "Series E Conversion Ratio"). The initial Series E Conversion Ratio shall be subject to adjustment (in order to adjust the number of shares of Class C Common Stock into which the Series E Preferred Stock is convertible) as herein provided. In addition, upon the occurrence of a Class C Triggering Event each issued and outstanding share of Series E Preferred Stock automatically shall be converted into shares of Class A Common Stock at a conversion ratio equal to the then applicable Series E Conversion Ratio. (2) Automatic Conversion Upon Transfer. Each share of Series E Preferred Stock transferred, directly or indirectly, by Aspen or Atlantis (or any Permitted Transferee) to one or more Persons other than a Permitted Transferee shall automatically upon such transfer convert into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series E Conversion Ratio, provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of Series E Preferred Stock by Aspen, Atlantis or any Permitted Transferee so long as ODC continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction. Notwithstanding the foregoing, any share of Series E Preferred Stock transferred by Aspen or Atlantis (or any Permitted Transferee) pursuant to the provisions of the preceding sentence shall, if such transfer is to any Person other than AOL, ODC, any Cisneros Family Member or any Wholly Owned Affiliate of AOL or ODC, automatically convert into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series E Conversion Ratio (A) upon such transfer, unless ODC obtains from such transferee a voting agreement and voting proxy, each in form and substance satisfactory to the Corporation and AOL (if AOL then holds any High Vote Stock), pursuant to which such transferee agrees to grant to ODC the right to vote all shares of Series E Preferred Stock transferred to such transferee at the sole discretion of ODC, (B) upon the termination of, or the occurrence of any event invalidating or modifying in any material respect the voting provisions contained in, any voting agreement or voting proxy entered into pursuant to the provisions of the preceding Section (A), and (C) solely with respect to a transfer to an Employee of ODC or a Cisneros Family member, if (i) such transfer, either individually or when aggregated with all prior transfers of Series E Preferred Stock and High Vote Stock to Employees of ODC and Cisneros Family members, exceeds 19,972,382 shares (as such number shall be equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction, and assuming for purposes of such calculation that (1) all shares of Series E Preferred Stock so transferred are converted into High Vote Common Stock at the Series E Conversion Ratio and (2) all shares of High Vote Preferred Stock so transferred are converted into High Vote Common Stock at the applicable Conversion Ratio) or (ii) such person ceases to be an Employee of ODC. A copy of every voting agreement and voting proxy entered into in accordance with the provisions hereof, and all amendments thereto or modifications thereof, must be filed with the Corporation promptly after the execution thereof. Notwithstanding the foregoing, (y) if any Permitted Transferee ceases to qualify as a Permitted Transferee at any time following the transfer of the Series E Preferred Stock, then each share of Series E Preferred Stock transferred to such Permitted Transferee shall automatically convert, at the time that the transferee ceases to so qualify, into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series E Conversion Ratio; and (z) no transfer of Series E Preferred Stock may be made, and any such transfer shall not be deemed to be valid by the Corporation, if such transfer would, when combined with all other transfers of such Series E Preferred Stock previously consummated, require the Corporation to register any of the Series E Preferred Stock under the Securities Exchange Act of 1934, as amended. Determinations as to the occurrence of events listed in this Section 5(B)(i)(2) shall be made by a majority of the Board, subject to the provisions of Clause (c) of Article FIFTH of the Certificate of Incorporation regarding the approval of actions with stockholders. In addition, if any Person other than AOL, ODC, any Cisneros Family Member or any Wholly Owned Affiliate of AOL or ODC otherwise acquires any direct or indirect ownership interest in a share of Series E Preferred Stock, such share of Series E Preferred Stock shall automatically convert into that number of fully paid and non-assessable shares of Class A Common Stock into which it is then convertible at a conversion ratio equal to the then applicable Series E Conversion Ratio, in any event, upon such Person acquiring such ownership interest; provided that no such conversion shall occur solely as a result of the pledge, hypothecation or other similar financing transaction of any Series E Preferred Stock by Aspen or Atlantis or any Permitted Transferee so long as (i) ODC continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction and (ii) the holder of such right to vote continues as a Wholly Owned Affiliate of ODC. For purposes of this Certificate, "ODC" shall mean, individually and collectively, Riverview Media Corp., a British Virgin Islands corporation, and Aspen and Atlantis, for so long as each of Aspen and Atlantis is directly or indirectly wholly owned by the Cisneros Family, and, any Permitted Transferee(s) for so long as such Permitted Transferee(s) are directly or indirectly wholly owned by, or is a or are, member(s) of the Cisneros Family. Notwithstanding the foregoing, in each instance in this Certificate where (i) ODC is required to provide any consent to any action or inaction by the Corporation or any other Person, or (ii) hold or vote any proxy required to be delivered hereunder, the term "ODC" shall mean, (A) Aspen and/or Atlantis, if Aspen and/or Atlantis then collectively hold at least a majority of the voting power of the Preferred Stock and Common Stock then held by ODC and its Permitted Transferees, in the aggregate, and (B) if Aspen and/or Atlantis do not then collectively hold at least a majority of the voting power of the Preferred Stock and Common Stock then held by ODC and its Permitted Transferees, in the aggregate, such Person or Persons as the Corporation may, in its sole discretion based on the stock record books of the Corporation, determine then holds at least a majority of the voting power of the Preferred Stock and Common Stock then held by ODC and its Permitted Transferees, in the aggregate. (3) Automatic Conversion Upon Filing of Restated Certificate of Incorporation. Upon the filing by the Corporation with the Secretary of State of the State of Delaware of the Restated Certificate, each issued and outstanding share of Series E Preferred Stock immediately and automatically thereafter shall convert into one (1) fully paid and non-assessable share of Series C Preferred Stock (as such ratio shall be equitably adjusted by the Board for any stock split, stock dividend, reverse stock split, reclassification or similar transaction). (ii)Fractional Shares. No fractional shares of Series C Preferred Stock, Class C Common Stock or Class A Common Stock, as applicable, shall be issued upon conversion of the Series E Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to the product of such fraction multiplied by the then applicable Series E Conversion Ratio multiplied by the Fair Market Value. (iii) Mechanics of Conversion. (1) In order for a holder of Series E Preferred Stock to voluntarily convert shares of Series E Preferred Stock into shares of Class C Common Stock, such holder shall surrender the certificate or certificates for such shares of Series E Preferred Stock, at the office of the transfer agent for the Series E Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the Series E Preferred Stock represented by such certificate or certificates. Such notice shall state such holder's name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Class C Common Stock to be issued and the number of shares of Series E Preferred Stock to be converted. The date of receipt of such certificates and notice by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) shall be the conversion date for a voluntary conversion, and the date of the Class C Triggering Event or other automatic conversion, as applicable, shall be the conversion date for an automatic conversion (each, a "Series E Conversion Date") and each conversion shall be deemed effective as of the close of business on the applicable Series E Conversion Date. The Corporation shall, as soon as practicable after (i) a Series E Conversion Date, and (ii) receipt of the certificate or certificates representing the shares of Series E Preferred Stock converted on such Series E Conversion Date, issue and deliver at such office to such holder of converted Series E Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of shares of Class C Common Stock or Series C Preferred Stock, as applicable, to which such holder shall be entitled, together with cash in lieu of any fraction of a share or, if a Class C Triggering Event or other automatic conversion has occurred, a certificate or certificates for the number of shares of Class A Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of a share. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. If the number of shares of Series E Preferred Stock represented by the certificate or certificates surrendered pursuant to this Section exceeds the number of shares being converted, the Corporation shall, upon such conversion, execute and deliver to the holder, at the expense of the Corporation, a new certificate or certificates for the number of shares of Series E Preferred Stock represented by such certificate or certificates surrendered but not converted. (2) The Corporation shall at all times when the Series E Preferred Stock is outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose of effecting the conversion of the Series E Preferred Stock, such number of its duly authorized shares of Series C Preferred Stock, Class C Common Stock and Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series E Preferred Stock; provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the conversion or exchange of the outstanding shares of Series E Preferred Stock by delivery of purchased shares of Series C Preferred Stock, Class C Common Stock and/or Class A Common Stock, as applicable, which are held in the treasury of the Corporation. (3) All shares of Series E Preferred Stock surrendered for conversion or deemed automatically converted, as applicable, as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices, to vote and to accrual of dividends shall immediately cease and terminate at the close of business on the applicable Series E Conversion Date (except only the right of the holders thereof to receive shares of Class A Common Stock, Class C Common Stock or Series C Preferred Stock, as applicable, in exchange therefor) and any shares of Series E Preferred Stock so converted shall be retired and canceled and shall not be reissued, and the Corporation from time to time shall take appropriate action to reduce the authorized shares of Series E Preferred Stock accordingly. (4) Upon any such conversion, no adjustment to the then applicable Series E Conversion Ratio shall be made for any declared but unpaid dividends on the Series E Preferred Stock surrendered for conversion or on the Class A Common Stock, Class C Common Stock or Series C Preferred Stock, as applicable, delivered upon conversion. (C) Adjustments to Conversion Ratio. (i) Special Definitions: (1) "Original Issue Date" shall mean the date on which shares of Series D Preferred Stock and Series E Preferred Stock were first issued. (2) "New Shares of Common Stock" shall mean all shares of Common Stock issued (or, pursuant to Section 5(C)(ii) hereof, deemed to be issued) by the Corporation after the Original Issue Date. (ii) Issue of Securities Deemed Issue of New Shares of Common Stock. If the Corporation shall, at any time or from time to time after the Original Issue Date, declare or pay any dividend or make any other distribution on the Common Stock payable in Common Stock or effect a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in Common Stock), then and in any such event, New Shares of Common Stock shall be deemed to have been issued: (1) in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of any class of securities entitled to receive such dividend or distribution, or (2) in the case of any such subdivision, at the close of business on the date immediately prior to the date upon which such corporate action becomes effective. If such record date shall have been fixed and such dividend shall not have been fully paid on the date fixed therefor, the adjustment previously made in the Series D Conversion Ratio or Series E Conversion Ratio which became effective on such record date shall be cancelled as of the close of business on such record date, and thereafter the Series D Conversion Ratio or Series E Conversion Ratio shall be adjusted pursuant to this Section 5(C) as of the time of actual payment of such dividend. (iii) Adjustment for Dividends, Distributions, Subdivisions, Combinations or Consolidations of Common Stock. (1) Stock Dividends, Distributions or Subdivisions. If the Corporation shall issue New Shares of Common Stock in the manner described in Section 5(C)(ii) above in a stock dividend, stock distribution or subdivision, the Series D Conversion Ratio and the Series E Conversion Ratio in effect immediately prior to such stock dividend, stock distribution or subdivision shall, concurrently with the effectiveness of such stock dividend, stock distribution or subdivision, be proportionately increased. (2) Combinations or Consolidations. If the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock, the Series D Conversion Ratio and the Series E Conversion Ratio in effect immediately prior to such combination or consolidation shall, concurrently with the effectiveness of such combination or consolidation, be proportionately decreased. (D) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Series D Conversion Ratio and/or Series E Conversion Ratio pursuant to Section 5(C)(iii) hereof, the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series D Preferred Stock and each holder of Series E Preferred Stock, as applicable, a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series D Preferred Stock and any holder of Series E Preferred Stock, furnish or cause to be furnished to such holder a similar certificate setting forth (1) such adjustments and readjustments, (2) the Series D Conversion Ratio or Series E Conversion Ratio, as applicable, then in effect, and (3) the number of shares of Class B Common Stock or Class C Common Stock and the amount, if any, of other property, that then would be received upon the conversion of a share of Series D Preferred Stock or a share of Series E Preferred Stock, respectively. (E) Notice of Record Date. If any of the following events occur: (i) the Corporation declares a dividend (or any other distribution) on its Common Stock payable in Common Stock or other securities of the Corporation; (ii) the Corporation subdivides or combines its outstanding shares of Common Stock; (iii) there occurs or is proposed to occur any reorganization, recapitalization or reclassification of the Common Stock of the Corporation (other than a subdivision or combination of its outstanding shares of Common Stock or a stock dividend or stock distribution thereon), or any consolidation or merger of the Corporation into or with another corporation, or the sale of all or substantially all of the assets of the Corporation; or (iv) the involuntary or voluntary liquidation, dissolution, or winding-up of the Corporation; then the Corporation shall cause to be filed at its principal office or at the office of the transfer agent of the Series D Preferred Stock and the Series E Preferred Stock, and shall cause to be mailed to the holders of the Series D Preferred Stock and the Series E Preferred Stock at their addresses as shown on the records of the Corporation or such transfer agent, at least fifteen (15) days prior to the record date specified in (1) below or thirty (30) days before the date specified in (2) below, a notice stating the following information: (1) the record date of such dividend, distribution, subdivision or combination, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, subdivision, or combination are to be determined, or (2) the date on which such reclassification, consolidation, merger, sale, liquidation, dissolution or winding-up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, liquidation, dissolution or winding-up. 6. Redemption. (A) Mandatory Redemption by the Corporation. On the fifth anniversary of the Original Issue Date (the "Redemption Date"), the Corporation shall, out of funds legally available therefor, redeem all of the then outstanding shares of Series D Preferred Stock pursuant to this Section 6(A) at the Series D Redemption Price (the "Mandatory Series D Redemption"). The "Series D Redemption Price" per share of Series D Preferred Stock to be redeemed shall mean an amount in cash or shares of Class A Common Stock (valued at their then Fair Market Value), at the Corporation's option, equal to the sum of the Series D Liquidation Preference attributable to such share plus an amount equal to all accrued but unpaid dividends attributable to such share. In addition, on the Redemption Date, the Corporation shall, out of funds legally available therefor, redeem all of the then outstanding shares of Series E Preferred Stock pursuant to this Section 6(A) at the Series E Redemption Price (the "Mandatory Series E Redemption," and together with the Mandatory Series D Redemption, the "Mandatory Redemptions"). The "Series E Redemption Price" per share of Series E Preferred Stock to be redeemed shall mean an amount in cash or shares of Class A Common Stock (valued at their then Fair Market Value), at the Corporation's option, equal to the sum of the Series E Liquidation Preference attributable to such share plus an amount equal to all accrued but unpaid dividends attributable to such share. (B) Mechanics of Redemption. (i) Mandatory Redemption. In order to effect the Mandatory Redemptions, the Corporation shall send a notice (a "Redemption Notice") to the address of record for all holders of shares of outstanding Series D Preferred Stock and Series E Preferred Stock, which Redemption Notice shall: (1) state that the Corporation is commencing the Mandatory Redemptions, (2) state that all of the outstanding shares of Series D Preferred Stock and Series E Preferred Stock will be redeemed, (3) state the Series D Redemption Price, including the amount of accrued but unpaid dividends included in the Series D Redemption Price, and whether the Series D Redemption Price will be paid in cash or shares of Class A Common Stock, and (4) state the Series E Redemption Price, including the amount of accrued but unpaid dividends included in the Series E Redemption Price, and whether the Series E Redemption Price will be paid in cash or shares of Class A Common Stock. Once the Redemption Notice is mailed to the holders at their addresses of record, all of the shares of Series D Preferred Stock and Series E Preferred Stock not converted on or prior to the Redemption Date shall be subject to redemption on the Redemption Date. On the Redemption Date, the holders of shares of Series D Preferred Stock and Series E Preferred Stock then outstanding shall surrender the certificate or certificates evidencing such shares of Series D Preferred Stock and Series E Preferred Stock, duly endorsed, at the office of the Corporation or of any transfer agent for the Series D Preferred Stock and Series E Preferred Stock, and the Corporation shall pay such holders of Series D Preferred Stock the applicable Series D Redemption Price and such holders of Series E Preferred Stock the applicable Series E Redemption Price. All shares of Series D Preferred Stock and Series E Preferred Stock shall no longer be deemed to be outstanding and all rights with respect to such shares, including without limitation the right to accrual of dividends, shall immediately cease and terminate at the close of business of the Corporation on the Redemption Date (except only the right of the holders thereof to receive the Series D Redemption Price or Series E Redemption Price, as applicable, in exchange therefor), notwithstanding that the certificates representing such shares of Series D Preferred Stock and/or Series E Preferred Stock shall not have been surrendered at the office of the Corporation or, if the Series D Redemption Price and/or Series E Redemption Price is to be paid in shares of Class A Common Stock, that the certificates evidencing such shares of Class A Common Stock shall not then be actually delivered to such holder. If the Series D Redemption Price and/or Series E Redemption Price is to be paid in shares of Class A Common Stock, each holder of shares of Series D Preferred Stock and each holder of shares of Series E Preferred Stock shall give written notice to the Corporation that shall state therein the name of such holder or the name or names of the nominees of such holder in which such holder wishes the certificate or certificates for shares of Class A Common Stock to be issued, and the person or persons entitled to receive the shares of Class A Common Stock issuable upon redemption shall be treated for all purposes as the record holder or holders of such shares of Class A Common Stock on the Redemption Date. No fractional shares of Class A Common Stock shall be issued upon redemption of any shares of Series D Preferred Stock or Series E Preferred Stock and cash in lieu of any fraction of a share will be paid to the holder thereof. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series D Preferred Stock and to such holder of Series E Preferred Stock, as applicable, or to such holder's nominee or nominees, a certificate or certificates for the number of shares of Class A Common Stock to which such holder shall be entitled as aforesaid. (ii) Election to Convert. Notwithstanding the issuance of any Redemption Notice by the Corporation or the receipt of any Redemption Notice by any holder of Series D Preferred Stock, such holder may elect to convert such Series D Preferred Stock into Class B Common Stock at any time prior to close of business of the Corporation on the Redemption Date. Any such conversion shall be at the then applicable Series D Conversion Ratio and on the other terms and conditions set forth in Section 5. Notwithstanding the issuance of any Redemption Notice by the Corporation or the receipt of any Redemption Notice by any holder of Series E Preferred Stock, such holder may elect to convert such Series E Preferred Stock into Class C Common Stock at any time prior to close of business of the Corporation on the Redemption Date. Any such conversion shall be at the then applicable Series E Conversion Ratio and on the other terms and conditions set forth in Section 5. 7. Reacquired Shares. Any shares of Series D Preferred Stock and/or Series E Preferred Stock converted, redeemed, purchased, or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after the acquisition thereof, and shall not be reissued and shall, upon the filing by the Corporation of a certificate of decrease, return to the status of authorized but undesignated shares of Preferred Stock. IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed by its duly authorized officer this 30th day of March, 2001. AMERICA ONLINE LATIN AMERICA, INC. By:________________________________ Name: Title: EX-6 6 0006.txt REGISTRATION RIGHTS AGREEMENT Exhibit 6 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of this 30th day of March, 2001 (the "Effective Date"), by and among America Online Latin America, Inc., a Delaware corporation having its principal place of business at 6600 N. Andrews Avenue, Suite 500, Fort Lauderdale, Florida 33309 (the "Company"), America Online, Inc., a Delaware corporation having its principal place of business at 22000 AOL Way, Dulles, Virginia 20166 ("AOL"), Aspen Investments LLC, a Delaware limited liability company having its principal place of business at 550 Biltmore Way, Suite 900, Coral Gables, Florida 33134 ("Aspen") and Atlantis Investments LLC, a Delaware limited liability company having its principal place of business at 550 Biltmore Way, Suite 900, Coral Gables, Florida 33134 ("Atlantis", and together with Aspen, "ODC"). AOL, Aspen and Atlantis are sometimes hereinafter referred to, collectively, as the "Stockholders" and, individually, as a "Stockholder." WHEREAS, the Company, AOL and Riverview Media Corp., a British Virgin Islands corporation ("Riverview"), entered into a Registration Rights Agreement, dated as of August 7, 2000 (the "Original Agreement"); WHEREAS, on August 11, 2000 the Company issued in its initial public offering 4,000,000 shares of Class A Common Stock (as hereinafter defined) to each of AOL and Riverview (the "IPO Class A Common Stock"); WHEREAS, pursuant to the AOL-LA Share Transfer and Assignment Agreement, dated as of December 28, 2000, by and between Riverview, Aspen and Atlantis (the "Assignment Agreement"), Riverview assigned to each of Aspen and Atlantis all of its right, title and interest in and to 48,649,203 shares of Series C Preferred Stock (as hereinafter defined), and 2,000,000 shares of IPO Class A Common Stock; WHEREAS, pursuant to the Assignment Agreement Riverview assigned to Aspen and Atlantis all of its rights and obligations under the Original Agreement, which rights included certain registration rights with respect to the Class A Common Stock issuable upon conversion of the Series C Preferred Stock; WHEREAS, the Company has an authorized capital of 1,750,000,000 shares of common stock, consisting of 1,250,000,000 shares of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"), 250,000,000 shares of Class B Common Stock, par value $.01 per share (the "Class B Common Stock"), 250,000,000 shares of Class C Common Stock, par value $.01 per share (the "Class C Common Stock", and collectively with the Class A Common Stock and the Class B Common Stock, the "Common Stock"), and 500,000,000 shares of Preferred Stock, par value $.01 per share, consisting of 150,000,000 shares of Series B Redeemable Convertible Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"), 150,000,000 shares of Series C Redeemable Convertible Preferred Stock, par value $.01 per share (the "Series C Preferred Stock"), 25,000,000 shares of Series D Redeemable Convertible Preferred Stock, par value $.01 per share (the "Series D Preferred Stock"), and 25,000,000 shares of Series E Redeemable Convertible Preferred Stock, par value $.01 per share (the "Series E Preferred Stock," and collectively with the Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock the "Preferred Stock"); WHEREAS, as of the date hereof AOL owns all of the issued and outstanding shares of Series B Preferred Stock and ODC owns or has the sole voting power for all of the issued and outstanding shares of Series C Preferred Stock; WHEREAS, on August 7, 2000, the Company issued to AOL a warrant (the "Warrant") to purchase 16,541,250 shares of Series B Preferred Stock and/or Class B Common Stock and/or Class A Common Stock; WHEREAS, AOL has agreed to purchase shares of Series D Preferred Stock; WHEREAS, Aspen and Atlantis have each agreed to purchase shares of Series E Preferred Stock; WHEREAS, upon the satisfaction of certain conditions, the Series D Preferred Stock will automatically convert into Series B Preferred Stock and the Series E Preferred Stock will automatically convert into Series C Preferred Stock; WHEREAS, AOL may elect to convert any or all of the shares of Series B Preferred Stock and Series D Preferred Stock into shares of Class B Common Stock and ODC may elect to convert any or all of the shares of Series C Preferred Stock and Series E Preferred Stock into shares of Class C Common Stock; WHEREAS, AOL may elect to convert the shares of Class B Common Stock received upon conversion of the shares of Series B Preferred Stock and Series D Preferred Stock into shares of Class A Common Stock and ODC may elect to convert the shares of Class C Common Stock received upon conversion of the shares of Series C Preferred Stock and Series E Preferred Stock into shares of Class A Common Stock; WHEREAS, AOL desires to have its 4,000,000 shares of IPO Class A Common Stock be subject to the registration rights set forth in the Original Agreement; WHEREAS, AOL desires to have the Class A Common Stock issuable upon conversion of the Series D Preferred Stock be subject to the registration rights set forth in the Original Agreement; WHEREAS, if the Series D Preferred Stock is converted into Series B Preferred Stock, AOL desires to have the Class A Common Stock issuable upon conversion of such Series B Preferred Stock be subject to the registration rights set forth in the Original Agreement; WHEREAS, Aspen and Atlantis each desire to have the 2,000,000 shares of IPO Class A Common Stock that were assigned to it by Riverview pursuant to the Assignment Agreement be subject to the registration rights set forth in the Original Agreement; WHEREAS, Aspen and Atlantis each desire to have the Class A Common Stock issuable upon conversion of the Series E Preferred Stock be subject to the registration rights set forth in the Original Agreement; WHEREAS, if the Series E Preferred Stock is converted into Series C Preferred Stock, Aspen and Atlantis each desire to have the Class A Common Stock issuable upon conversion of such Series C Preferred Stock be subject to the registration rights set forth in the Original Agreement; and WHEREAS, the Company and the Stockholders desire to amend and restate the Original Agreement as described herein; NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, the parties hereto hereby agree as follows: Section 1. Definitions Section 1.1 Capitalized terms used herein without definition have the meanings assigned to such terms in the Stockholders' Agreement (as defined herein). As used in this Agreement, the following terms shall have the following meanings: "Advice" shall have the meaning given in Section 6(c). "Agreement" shall have the meaning given in the Preamble. "AOL" shall have the meaning given in the Preamble. "Aspen" shall have the meaning given in the Preamble. "Assignment Agreement" shall have the meaning given in the third Whereas Clause. "Atlantis" shall have the meaning given in the Preamble. "Business Day" shall mean any day, other than a Saturday or Sunday, on which federally chartered banks in the United States are open for business. "Class A Common Stock" shall have the meaning given in the fifth Whereas Clause. "Class B Common Stock" shall have the meaning given in the fifth Whereas Clause. "Class C Common Stock" shall have the meaning given in the fifth Whereas Clause. "Commission" means the Securities and Exchange Commission, or any successor agency performing the functions currently performed by the Securities and Exchange Commission. "Common Stock" shall have the meaning given in the fifth Whereas Clause. "Company" shall have the meaning given in the Preamble. "Demand Filing Date" shall have the meaning given in Section 3.2. "Demand Holder" shall have the meaning given in Section 3.1. "Demand Registration" shall have the meaning given in Section 3.1. "Demand Request" shall have the meaning given in Section 3.1. "Effective Date" shall have the meaning given in the Preamble. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended. "Holder" means, as of any date, AOL, ODC (and shall include Aspen and Atlantis, individually) and each other Person to whom either of them shall have assigned any rights hereunder in accordance with the provisions of Section 10.6 and who owns Registrable Securities as of such date. "Indemnified Party" shall have the meaning given in Section 8.3. "Indemnifying Party" shall have the meaning given in Section 8.3. "IPO" means the initial public offering of the Class A Common Stock pursuant to an offering registered under the Securities Act. "IPO Class A Common Stock" shall have the meaning given in the second Whereas Clause. "Lock-Up Agreement" means the agreement between each Stockholder and an underwriter for the IPO, pursuant to which such Stockholder agrees that it will not, during the Lock-Up Period (as defined below) offer to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or grant any rights with respect to any shares of Common Stock, any options or warrants to purchase any shares of common stock, or any securities convertible into or exchangeable for any shares of Common Stock now owned or hereafter acquired directly by the Stockholder or with respect to which the Stockholder has or hereafter acquires the power of disposition. "Lock-Up Period" means the respective period agreed to in a Lock-Up Agreement by each Stockholder and an underwriter for the IPO during which time such Stockholder agrees that it will not offer to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or grant any rights with respect to any shares of Common Stock, any options or warrants to purchase any shares of Common Stock, or any securities convertible into or exchangeable for any shares of Common Stock now owned or hereafter acquired directly by the Stockholder or with respect to which the Stockholder has or hereafter acquires the power of disposition. "Losses" shall have the meaning given in Section 8.1. "ODC" shall have the meaning given in the Preamble. "Original Agreement" shall have the meaning given in the first Whereas Clause. "Preferred Stock" shall have the meaning given in the fifth Whereas Clause. "Proceeding" means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. "Prospectus" means any prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by any Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference in such Prospectus. "Register," "Registered" and "Registration," whether or not capitalized, mean and refer to a registration effected by preparing and filing a Registration Statement in compliance with the Securities Act and applicable rules and regulations thereunder, and the declaration or ordering of the effectiveness of such Registration Statement. "Registrable Securities" means any shares of IPO Class A Common Stock and any shares of Class A Common Stock issued or issuable upon (a) conversion of shares of Class B Common Stock or Class C Common Stock issuable upon exercise of the Warrant or conversion of the Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock, or (b) exercise of the Warrant; provided, however, that the shares of Class A Common Stock that are Registrable Securities shall cease to be Registrable Securities (x) upon the consummation of any sale of such shares pursuant to (i) an effective Registration Statement under the Securities Act or (ii) Rule 144, (y) at such time as such shares of Class A Common Stock (which are issued or which may become issued upon conversion, exchange or exercise of any other security) become eligible for sale under Rule 144(k) under the Securities Act and (z) with respect to any Holder, on the first date when all of the Registrable Securities then held by such Holder are eligible for sale during a single three month period under Rule 144. "Registration Expenses" shall have the meaning given in Section 7. "Registration Statement" means any Registration Statement and any additional Registration Statement, including (in each case) the Prospectus, amendments and supplements to such Registration Statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference in such Registration Statement to be filed pursuant to the terms of this Agreement. "Rule 144" means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Rule 158" means Rule 158 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Rule 415" means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended. "Series B Preferred Stock" shall have the meaning given in the fifth Whereas Clause. "Series C Preferred Stock" shall have the meaning given in the fifth Whereas Clause. "Series D Preferred Stock" shall have the meaning given in the fifth Whereas Clause. "Series E Preferred Stock" shall have the meaning given in the fifth Whereas Clause. "Stockholder" shall have the meaning given in the Preamble. "Stockholders' Agreement" means the Amended and Restated Stockholders' Agreement of even date herewith by and among the Company, AOL and ODC. "Subsidiary" shall have the meaning given in the Stockholders' Agreement. "Underwritten Registration or Underwritten Offering" means a registration in connection with which securities of the Company are sold to an underwriter for reoffering to the public pursuant to an effective Registration Statement. "Warrant" shall have the meaning given in the seventh Whereas Clause. Section 2. "Piggy-Back" Registrations Section 2.1 If at any time after the IPO the Company shall determine to register for its own account or the account of others under the Securities Act (including (i) in connection with a public offering by the Company other than the IPO or (ii) a demand for registration made by any stockholder of the Company including any of the parties hereto) any of its equity securities (other than on Form S-4 or Form S-8 or their then equivalents relating to shares of Common Stock to be issued solely in connection with any acquisition of an entity or business or shares of Common Stock issuable in connection with stock option or other employee benefit plans) it shall send to each Holder written notice of such determination and if, within 30 days after receipt of such notice, such Holder shall so request in writing, the Company shall use its best efforts to include in such Registration Statement all or any part of the Registrable Securities such Holder requests to be registered. Section 2.2 If, in connection with any offering described in Section 2.1 of this Agreement involving an underwriting of common stock to be issued by the Company, the managing underwriter shall impose a limitation on the number of shares of such common stock which may be included in the Registration Statement because in its judgment, such limitation is necessary to effect an orderly public distribution, then, in the discretion of such managing underwriter, the Company shall include in such Registration Statements only such portion of the Registrable Securities with respect to which such Holders have requested inclusion pursuant hereto as such limitation permits after the inclusion of all shares of common stock to be registered by the Company for its own account. Any exclusion of Registrable Securities shall be made pro rata among such Holders seeking to include such shares, in proportion to the number of such shares sought to be included by such Holders. Section 3. "Demand" Registrations Section 3.1 At any time commencing at least 180 days after the effective date of any registration statement covering the IPO, each Holder (a "Demand Holder") may, from time to time, make a written request (each a "Demand Request") for registration under the Securities Act (a "Demand Registration") of all or part of the Registrable Securities held by such Holder; provided, however, that the Registrable Securities requested to be registered shall, on the date that the Demand Request is delivered, (i) constitute at least one percent (1%) of the shares of Common Stock outstanding, which shall include all shares of Common Stock issuable upon conversion or exchange of all then outstanding Preferred Stock, or (ii) have an aggregate minimum market value of at least $50,000,000 before calculation of underwriting discounts and commissions. Each Demand Request shall specify the number of Registrable Shares proposed to be sold by such Demand Stockholder. Section 3.2 Within 15 days after receipt of each Demand Request, the Company shall give written notice of such Demand Request to all non-requesting Holders and shall use its best efforts to cause a Registration Statement covering such of the Registrable Securities as may be requested by any Holders thereof (including the Holder or Holders giving the initial notice of intent to offer) to be filed with the Commission not later than 120 days after receipt of a Demand Request (the "Demand Filing Date") and shall use all commercially reasonable efforts to cause the same to be declared effective by the Commission as promptly as practicable after such filing. Both the Demand Request and any request to join in such Demand Request shall be considered a single Demand Request. Section 3.3 Notwithstanding any other provision set forth in this Section 3, no Holder shall be entitled to deliver a Demand Request within 90 days after the effectiveness of any Registration Statement filed (i) by the Company pursuant to an Underwritten Offering by the Company other than the IPO or (ii) on behalf of any Demand Holder or any other Holder of demand registration rights with respect to the Common Stock. Section 3.4 The Company may defer the filing (but not the preparation) of a Registration Statement required by this Section 3 until a date not later than 120 days after the Demand Filing Date if: (a) at the time the Company receives the Demand Request, there is (i) material non-public information regarding the Company which the Board reasonably determines not to be in the Company's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including but not limited to the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose; or (b) prior to receiving the Demand Request, the Board had determined to effect an Underwritten Offering and the Company had taken substantial steps and is proceeding with reasonable diligence to effect such offering. A deferral of the filing of a Registration Statement pursuant to this Section 3.5 shall be lifted, and the requested Registration Statement shall be filed forthwith, if, (x) in the case of a deferral pursuant to clause (a)(i), the material non-public information is made public by the Company, (y) in the case of a deferral pursuant to clause (a)(ii), the significant business opportunity is disclosed by the Company or is terminated, or (z) in the case of a deferral pursuant to clause (b), the proposed registration for the Company's account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 3.5, the Company shall promptly (but in any event within 10 days), upon determining to seek such deferral, deliver to each Demand Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 3.5 and an approximation of the anticipated delay. Within 20 days after receiving such certificate, the holders of a majority of the Registrable Securities held by the Demand Holder and each other Holder and for which registration was previously requested may withdraw such Demand Request by giving written notice to the Company. Section 4. Registration Procedures Whenever any Holder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its best efforts to effect the registration of such Registrable Securities and in furtherance thereof the Company shall: (a) prepare and file with the Commission on any appropriate form under the Securities Act with respect to such Registrable Securities and use its best efforts to cause such Registration Statement to become effective; (b)(i) prepare and file with the Commission such amendments, including post-effective amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than 180 days (or (1) such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments or (2) such longer period as may be commercially reasonable if such Registration Statement is for a shelf registration conducted pursuant to the provisions of Rule 415 (or any similar provisions then in force) promulgated under the Securities Act); (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and, as so supplemented or amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and, as promptly as possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Stockholders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented; (c) (i) furnish to the Holders of Registrable Securities to be sold, their counsel and any managing underwriters, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Stockholders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act; (d) notify the Holders of Registrable Securities to be sold, their counsel and any managing underwriters as promptly as possible (and in the case of (i), below, not less than five (5) days prior to such filing) and confirm such notice in writing no later than one (1) Business Day following the day: (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (ii) when the Commission notifies the Company whether there will be a "review" of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; (iii) when the Registration Statement or any post-effective amendment thereto has become effective; (iv) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (vi) when any of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby shall cease to be true and correct in all material respects; (vii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (viii) of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (e) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment; (f) if requested by any managing underwriter, if any Registrable Securities are to be sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should be included therein and (ii) thereafter make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable; (g) furnish to each Holder of Registrable Securities to be sold, their counsel and any managing underwriters, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; (h) promptly deliver to each Holder of Registrable Securities to be sold, their counsel, and any underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Stockholders and any underwriters in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto; (i) prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders, any underwriters and their counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder or underwriter requests in writing, to keep each such registration or qualification (or exemption therefrom) effective for at least 180 days (or such shorter period as the applicable Registration Statement shall be effective)and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject; (j) cooperate with the selling Holders and any managing underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such managing underwriters or Stockholders may request at least two Business Days prior to any sale of Registrable Securities; (k) upon the occurrence of any event contemplated by Section 4(d)(viii) of this Agreement, as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file all other required documents so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (l) use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the securities exchange, quotation system, market or over-the-counter bulletin board on which similar securities issued by the Company are then listed; (m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including those reasonably requested by any managing underwriters in order to expedite or facilitate the disposition of such Registrable Securities, and those reasonably requested by the selling Holders whether or not an underwriting agreement is entered into): (i) make such representations and warranties to such selling Holders and such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested; (ii) in the case of an Underwritten Offering, obtain and deliver copies thereof to the managing underwriters, if any, of opinions of counsel to the Company and updates thereof addressed to each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and counsel to the selling Stockholders covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters; (iii) immediately prior to the effectiveness of the Registration Statement, and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Securities sold pursuant thereto, obtain and deliver copies to the selling Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any Subsidiary (as defined in the Stockholders' Agreement) of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to each selling Holder and each of the underwriters, if any, in form and substance as are customary in connection with Underwritten Offerings; (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters than those set forth in Section 8 of this Agreement (or such other provisions and procedures acceptable to the managing underwriters and such selling Holders); and (v) deliver such documents and certificates as may be reasonably requested by the selling Holders, their counsel and any managing underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company; (n) make available for inspection by the selling Holders, any representative of such Holders, any underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such selling Holder or underwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, representative, underwriter, attorney or accountant in connection with the Registration Statement; provided, however, that any information that is determined in good faith by the Company to be of a confidential nature at the time of delivery of such information shall be kept confidential by such Persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person; or (iv) such information becomes available to such Person from a source other than the Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company; (o) comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158; (p) require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such selling Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. If the Registration Statement refers to any such Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required; and (q) not file a Registration Statement to which the Holder of a majority of the Registrable Securities covered thereby or its counsel or any managing underwriter shall reasonably object in writing within three (3) Business Days of their receipt thereof. Section 5. Lock-Up Agreement Each Holder agrees, if such Holder is so requested by the managing underwriter in the IPO, to enter into a Lock-Up Agreement, provided that the Lock-Up Period required therein shall not exceed 180 days. Section 6. Stockholder Covenants Each Holder hereby covenants and agrees that: (a) it will not sell any Registrable Securities under the Registration Statement until it has received notice from the Company that such Registration Statement and any post-effective amendments thereto have become effective; (b) it and its officers, directors or Affiliates (as defined in the Stockholders' Agreement), if any, will comply with the Prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to a Registration Statement; (c) upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 4(d)(iv), (v), (vi), (vii) and (viii) of this Agreement, such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. Section 7. Registration Expenses Except to the extent limited by the applicable state law, all fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not pursuant to an Underwritten Offering and whether or not any Registration Statement is filed or becomes effective and whether or not any Registrable Securities are sold pursuant to any Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any securities exchange or market on which Registrable Securities are required hereunder to be listed, and (B) in compliance with state securities or Blue Sky laws (including, without limitation, fees and disbursements of counsel for the Stockholders in connection with Blue Sky qualifications of the Registrable Securities and determination of the eligibility of the Registrable Securities for investment under the laws of such jurisdictions as the managing underwriters, if any, determine)); (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriters, if any; (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company; (v) Securities Act liability insurance, if the Company desires such insurance; (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement; and (vii) all of the internal expenses of the Company incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any annual audit, the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder (all such expenses being referred to herein as "Registration Expenses"); provided, however, that except as expressly set forth herein, in no event shall Registration Expenses include any underwriting discounts, commissions, or fees attributable to the sale of the Registrable Securities or any counsel, accountants or other persons retained by the Holders incurred in connection with the consummation of the transactions contemplated by this Agreement. Section 8. Indemnification and Contribution Section 8.1 Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder and their agents, brokers, investment advisors and employees of each of them and each underwriter of the Registrable Securities and their officers, directors, affiliates, partners and any broker or dealer through whom such shares may be sold and each Person, if any, who controls (within the meaning of Section 15 of the Securities Act) such Holder or any such underwriter, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, costs of preparation and reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of Prospectus or in any amendment or supplement thereto or in any preliminary Prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (in the case of any Prospectus or form of Prospectus or supplement thereto, in light of the circumstances under which they were made), except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, which information was reasonably relied on by the Company for use therein or to the extent that such information relates to such Holder or such Holder's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in any Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement. Section 8.2 Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, the directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses (as determined by a court of competent jurisdiction in a final judgment not subject to appeal or review) arising solely out of or based solely upon any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of Prospectus, or arising solely out of or based solely upon any untrue statement or omission of a material fact required to be stated therein or necessary to make the statements therein not misleading to the extent, but only to the extent, that such untrue statement or omission is contained or omitted, as the case may be, in any information so furnished in writing by such Holder to the Company specifically for inclusion in the Registration Statement or such Prospectus and that such information was reasonably relied upon by the Company for use in the Registration Statement, such Prospectus or such form of Prospectus or to the extent that such information relates to such Holder or such Holder's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Section 8.3 Conduct of Indemnification Proceedings. (a) If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party promptly shall notify the Person from whom indemnity is sought (the "Indemnifying Party") in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party. (b) An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, provided, however, the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; or (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the reasonable expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the reasonable expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. (c) All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten (10) Business Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder). Section 8.4 Contribution. (a) If a claim for indemnification under Section 8.1 or 8.2 is unavailable to an Indemnified Party because of a failure or refusal of a governmental authority to enforce such indemnification in accordance with its terms (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth herein, any reasonable attorneys' or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. (b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 8, no Stockholder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such Stockholder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (c) The indemnity and contribution agreements contained in this Section 8 are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties. Section 8.5 Rule 144. Following the IPO, the Company covenants that: (a) it will file the reports required to be filed by the Company under the Securities Act and the Exchange Act, so as to enable the Holders to sell Registrable Securities pursuant to Rule 144 under the Securities Act; (b) it shall cooperate with any Holder in connection with any sale, transfer or other disposition by such Holder of any Registrable Securities pursuant to Rule 144 under the Securities Act; (c) it will take such action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell its Common Stock without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions; and (d) upon the request of any Holder, it shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements. Section 9. Term of Registration Rights. The rights of Holders with respect to the registration rights granted pursuant to this Agreement shall remain in effect, subject to the terms hereof, so long as there are Registrable Securities or securities which are directly or indirectly convertible or exchangable for Registrable Securities issued and outstanding. Section 10. Miscellaneous. Section 10.1 Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Section 10.2 Notices. Any and all notices or other communications or deliveries required or permitted to be provided pursuant to this Agreement shall be in writing and shall be deemed to have been received (a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct answer back received), telecopy or facsimile (with transmission confirmation report) at the address or number designated below (if delivered on a Business Day during normal business hours where such notice is to be received), or the first Business Day following such delivery (if delivered on a Business Day after normal business hours where such notice is to be received) or (b) on the second Business Day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The address for the Company shall be: America Online Latin America, Inc., 6600 N. Andrews Avenue, Suite 500, Fort Lauderdale, FL 33309, USA; Attention: Chief Executive Officer; fax: (954) 772-7089. The addresses for each Holder shall be maintained by the Company. Copies of all notices shall be sent to America Online Latin America, Inc., 6600 N. Andrews Avenue, Suite 500, Fort Lauderdale, FL 33309, USA; Attention: General Counsel; fax: (954) 233-1805, or such other address as may be designated in writing hereafter, in the same manner, by such person. Section 10.3 Remedies. In the event of a breach by the Company or by a Holder of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. Section 10.4 No Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither the Company nor any of its Subsidiaries has previously entered into any agreement granting any registration rights with respect to any of its securities to any Person. Without limiting the generality of the foregoing, the Company shall not grant to any Person the right to request the Company to register any securities of the Company under the Securities Act unless the rights so granted are subject in all respects to the prior rights in full of the Holders, and are not otherwise in conflict or inconsistent with the provisions of this Agreement. Section 10.5 Amendments and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and the Holders; or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter. Notwithstanding the foregoing, no such amendment shall be effective to the extent that it applies to less than all of the Holders. The Company shall not offer or pay any consideration to a Holder for consenting to such an amendment or waiver unless the same consideration is offered to each Holder and the same consideration is paid to each Holder which consents to such amendment or waiver. Section 10.6 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. The rights of each Holder hereunder, including the right to have the Company register for resale Registrable Securities in accordance with the terms of this Agreement, shall be automatically assignable by each Holder together with the Registrable Security, or the securities into which such Registrable Securities are convertible or exchangeable into, to which such rights relate if: (a) the Holder agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (b) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (i) the name and address of such transferee or assignee, and (ii) the securities with respect to which such registration rights are being transferred or assigned, (c) following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws, (d) the transferee or assignee agrees in writing with the Company to be bound by all of the provisions of this Agreement, and (e) such transfer shall have been made in accordance with the applicable requirements of any agreement applicable to the transfer of such shares, including, without limitation, the Stockholders' Agreement. The rights to assignment shall apply to the Holders (and to subsequent) successors and assigns. Section 10.7 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Section 10.8 Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. Section 10.9 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. Section 10.10 Governing Law. This Agreement, and the rights and liabilities of the parties hereunder, shall be governed by the substantive laws of the State of Delaware, USA without giving effect to its rules relating to conflict of laws. Each party hereto irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the State of Delaware for all disputes arising under or related to this Agreement, which are subject to litigation hereunder, and to service of process in any jurisdiction in any such action by means of notice delivered pursuant to Section 10.2 hereof; provided, however to permit a party either to enforce a judgment or to seek injunctive relief, each party also irrevocably consents to the jurisdiction of the courts in the place where such judgment enforcement or injunctive relief is sought. Each party waives any objection it otherwise may have to the personal jurisdiction and venue of the courts designated in this Section 10.10. Notwithstanding the foregoing, for so long as a party is an entity organized under the laws of the State of Delaware, injunctive relief may be sought against that party only in the State of Delaware. Section 10.11 Counterparts; Facsimiles. This Agreement may be executed and delivered in one or more counterparts, each of which shall be deemed to be an original, and all of which when taken together shall constitute one and the same instrument, and shall become effective when copies hereof, bearing the signatures of each of the parties shall have been received by the Company, AOL and ODC. Facsimile signatures to this Agreement shall be effective if promptly followed by the original signed Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written. AMERICA ONLINE LATIN AMERICA, INC. By: ----------------------------------------------- Name: Title: AMERICA ONLINE, INC. By: ----------------------------------------------- Name: Title: ASPEN INVESTMENTS LLC By: ---------------------------------------------- Name: Title: ATLANTIS INVESTMENTS LLC By: ---------------------------------------------- Name: Title: Amended and Restated Registration Rights Agreement EX-8 7 0007.txt STOCK PURCHASE AGREEMENT Exhibit 8 STOCK PURCHASE AGREEMENT BY AND AMONG AMERICA ONLINE LATIN AMERICA, INC., AMERICA ONLINE, INC., ASPEN INVESTMENTS LLC, ATLANTIS INVESTMENTS LLC, and BANCO ITAU, S.A. - CAYMAN BRANCH Dated as of March 30, 2001 AMERICA ONLINE LATIN AMERICA, INC. Stock Purchase Agreement Dated as of March 30, 2001 Table of Contents Page ARTICLE I - SALE OF THE SHARES.................................................1 1.01 Initial Closing..............................................1 1.02 Additional Closings..........................................2 1.03 No Fractional Shares.........................................2 1.04 Funding Notice...............................................3 1.05 Reservation of Shares........................................3 1.06 Designation of Terms of Series D and Series E Preferred Stock........................................................3 1.07 Independent Obligations......................................3 ARTICLE II - CONDITIONS TO OBLIGATIONS AT THE INITIAL CLOSING..................4 2.01 Conditions to Purchasers' Obligations at the Initial Closing.4 2.02 Conditions to the Company's Obligations to each Purchaser at the Initial Closing..........................................5 ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................6 3.01 Organization; Authorization; No Conflict.....................6 3.02 Valid Issuance...............................................7 3.03 SEC Documents................................................7 3.04 Securities Law Compliance....................................8 3.05 Broker Fees..................................................8 3.06 Approvals and Consents.......................................8 3.07 No Prohibitions..............................................8 3.08 Amended Certificate..........................................8 ARTICLE IV - REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS..................9 4.01 Investment Representations...................................9 4.02 Organization; Authorization; No Conflict....................10 4.03 Brokers Fees................................................10 4.04 Disclosure of Information...................................10 4.05 Legends.....................................................10 4.06 Prior HSR Filings...........................................11 4.07 Approvals and Consents......................................11 4.08 No Prohibitions.............................................11 4.09 Banco Itau and BISA.........................................11 ARTICLE V - AFFIRMATIVE COVENANTS.............................................11 5.01 Certificate of Designation..................................11 5.02 Cooperation.................................................12 5.03 Reasonable Efforts..........................................12 ARTICLE VI - DEFAULT IN PAYMENTS..............................................12 6.01 Defaults by AOL.............................................12 6.02 Default by ODC..............................................13 6.03 Defaults by Itau............................................14 ARTICLE VII - DEFINITIONS.....................................................15 ARTICLE VIII - TERMINATION; SURVIVAL..........................................19 8.01 Termination by Mutual Consent..............................19 8.02 Effect of Termination and Abandonment.......................19 8.03 Termination by Expiry of Time...............................19 8.04 Survival of Representations and Warranties..................20 ARTICLE IX - MISCELLANEOUS....................................................20 9.01 No Waiver; Cumulative Remedies..............................20 9.02 Addresses for Notices.......................................20 9.03 Costs, Expenses and Taxes...................................22 9.04 Binding Effect; Assignment..................................22 9.05 Prior Agreements............................................23 9.06 Severability................................................23 9.07 Governing Law...............................................23 9.08 Headings....................................................23 9.09 Counterparts................................................23 9.10 Further Assurances..........................................23 9.11 Waiver of Preemptive Rights.................................24 9.12 Interpretation..............................................24 9.13 Amendments, Waivers and Consents............................24 EXHIBITS A List of Purchasers B Form of Certificate of Designation C Form of Restated AOL/ODC Stockholders' Agreement D Form of Restated AOL/ODC Registration Rights Agreement E Form of Restated Itau Registration Rights and Stockholders' Agreement F Form of Voting Agreement G Form of Restated Certificate H Form of Legal Opinion I Form of Cross Receipt to be executed by the Company and each Purchaser SCHEDULES I List of Company SEC Documents STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this 30th day of March, 2001 by and among America Online Latin America, Inc., a Delaware corporation (the "Company"), America Online, Inc., a Delaware corporation ("AOL"), Aspen Investments LLC, a Delaware limited liability company ("Aspen"), Atlantis Investments LLC, a Delaware limited liability company ("Atlantis," and together with Aspen, "ODC") and Banco Itau, S.A. - Cayman Branch, a Brazilian Sociedade Anonima ("Banco Itau," and together with Aspen, Atlantis and AOL, each, a "Purchaser" and collectively, the "Purchasers"). RECITALS: WHEREAS, the Company has proposed that it issue and sell to (i) AOL, that number of shares (the "Series D Shares") of the Company's Series D Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series D Preferred Stock"), as is obtained by dividing (1) $66,338,075 by (2) $4.6875 (the "Stipulated Price"), (ii) Aspen, that number of shares (the "Aspen Series E Shares") of the Company's Series E Redeemable Convertible Preferred Stock, $.01 par value per share (the "Series E Preferred Stock"), as is obtained by dividing (1) $31,898,525 by (2) the Stipulated Price, (iii) Atlantis, that number of shares (the "Atlantis Series E Shares" and together with the Aspen Series E Shares, the "Series E Shares") of Series E Preferred Stock as is obtained by dividing (1) $31,898,525 by (2) the Stipulated Price, and (iv) Banco Itau, that number of shares (the "Banco Itau Class A Shares") of the Company's Class A Common Stock, $.01 par value per share (the "Class A Common Stock") as is obtained by dividing (1) $19,864,875 by (2) the Stipulated Price; and WHEREAS, AOL, ODC and Banco Itau wish to purchase, respectively, the Series D Shares, the Series E Shares and the Banco Itau Class A Shares (collectively, the "Shares") from the Company. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company agrees to issue and sell to the Purchasers, and the Purchasers agree to purchase from the Company, the Shares, subject to the terms and conditions set forth below. ARTICLE I SALE OF THE SHARES 1.01 Initial Closing. Subject to the satisfaction of the conditions specified in Article II hereof, the Company agrees to issue and sell to each Purchaser at the Initial Closing, and each Purchaser, severally but not jointly (except that the obligations hereunder of Aspen and Atlantis shall be joint and several as to such two entities), agrees to purchase from the Company, a number of Shares equal to the dollar amount with respect to the Initial Closing set forth opposite such Purchaser's name on Exhibit A hereto divided by the Stipulated Price. The Shares purchased by the Purchasers at the Initial Closing shall be referred to herein as the "Initial Shares". The purchase and sale of the Initial Shares shall take place at a closing (the "Initial Closing") to be held at 10:00 a.m. local time at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz Levin"), 701 Pennsylvania Avenue, N.W., Suite 900, Washington, D.C., on April 2, 2001 or on the first Business Day thereafter in which all of the conditions set forth herein have been met, or at such other location, or on such other date and at such other time as may be mutually agreed upon by the Company and all of the Purchasers. At the Initial Closing, the Company will issue and deliver certificates evidencing the Initial Shares against payment of the full purchase price therefor by wire transfer of immediately available funds to an account designated by the Company. 1.02 Additional Closings. A. The Company shall, on closings to be held on June 1, 2001 and August 1, 2001 (each, an "Additional Closing"), issue and sell to each of AOL, Aspen and Atlantis, and each of AOL, Aspen and Atlantis, severally but not jointly (except that the obligations hereunder of Aspen and Atlantis shall be joint and several as to such two entities), agrees to purchase from the Company, a number of Shares equal to the dollar amount with respect to such Additional Closing set forth opposite such Purchaser's name on Exhibit A hereto divided by the Stipulated Price. The obligations of the Company to sell, and of such Purchasers to purchase, such number of Shares at the Additional Closings are irrevocable and unconditional. If prior to any Additional Closing the Amended Certificate has been filed and accepted by the Delaware Secretary of State, then at such Additional Closing (i) the Company shall sell to AOL, and AOL shall buy from the Company, Series B Preferred Stock, rather than Series D Preferred Stock, on the terms specified in this Agreement, and (ii) the Company shall sell to each of Aspen and Atlantis, and each of Aspen and Atlantis shall buy from the Company, Series C Preferred Stock, rather than Series E Preferred Stock, on the terms specified in this Agreement. The Shares purchased by such Purchasers at each Additional Closing shall be referred to herein as the "Remaining Shares". B. Each Additional Closing shall be held at 10:00 a.m. local time at the offices of Mintz Levin on the dates listed above, or at such other location, on such other dates and at such other times as may be mutually agreed upon by the Company, AOL, Aspen and Atlantis. At each Additional Closing, the Company will issue and deliver certificates evidencing the Remaining Shares to be purchased at such Additional Closing against payment of the full purchase price therefor by wire transfer of immediately available funds to an account designated by the Company. 1.03 No Fractional Shares. No certificates or scrip representing fractional Shares shall be issued upon payment of the respective dollar amounts to be paid by a Purchaser, and any such fractional Share interests will not entitle the owner thereof to vote or to any other rights of a shareholder of the Company. Notwithstanding any other provision of this Agreement, each Purchaser who would otherwise have been entitled to receive a fraction of a Share shall receive from the Company, in accordance with the provision of this Article I, a cash payment, in United States dollars and without interest, in lieu of such fractional Share. The Company shall determine the amount of the cash payment to which each such Purchaser shall be entitled by multiplying the Stipulated Price by the amount of the fractional Share interest to which such Purchaser is entitled. 1.04 Funding Notice. Notwithstanding the foregoing, if the Special Committee determines that the Company's capital requirements will exceed the amount of funds required to be contributed at any scheduled closing hereunder, the Company may, by written notice delivered to each of AOL, Aspen and Atlantis not less than seven (7) Business Days prior to the date of the Initial Closing or any Additional Closing, as the case may be (each, a "Funding Notice"), require that AOL, Aspen and Atlantis purchase more than the dollar amount of Shares otherwise scheduled to be purchased at the Initial Closing or any such Additional Closing. Each Funding Notice shall set forth the dollar amount of the Shares to be purchased by each of AOL, Aspen and Atlantis at the Initial Closing or such Additional Closing, as applicable (which Shares shall be sold to each of AOL, Aspen and Atlantis pro rata in proportion to their aggregate commitments hereunder). In no event, however, may the aggregate amount required to be purchased by any Purchaser at all closings hereunder exceed the aggregate commitment of such Purchaser hereunder as set forth in the first recital paragraph hereof. If any funding is made pursuant to any Funding Notice, the amount so funded in excess of the amount otherwise required to be funded at such closing shall be subtracted from the amount otherwise required to be funded at the last Additional Closing. 1.05 Reservation of Shares. Except for redemptions of (i) Series D and Series E Preferred Stock pursuant to Section 6 of the Certificate of Designation, as defined below and (ii) Series B and Series C Preferred Stock pursuant to Clause (c)(vi) of Article FOURTH of the Company's restated certificate of incorporation (the "Restated Certificate"), the Company has authorized and has reserved and covenants to continue to reserve, free and clear of any Liens, preemptive rights and other preferential rights, a sufficient number of its authorized but unissued shares of (i) Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock to satisfy the Company's obligations hereunder, (ii) Class B Common Stock, par value $.01 per share (the "Class B Common Stock"), and Class A Common Stock to satisfy the rights of conversion of the holders of the Series B Preferred Stock and Series D Preferred Stock and (iii) Class C Common Stock, par value $.01 per share (the "Class C Common Stock," and together with the Class B Common Stock and the Class A Common Stock, the "Common Stock"), and Class A Common Stock to satisfy the rights of conversion of the holders of the Series C Preferred Stock and Series E Preferred Stock. Any shares of Common Stock, Series B Preferred Stock and Series C Preferred Stock issuable upon conversion of the Shares are herein referred to as the "Conversion Shares." 1.06 Designation of Terms of Series D and Series E Preferred Stock. Prior to the Initial Closing, the Company shall file with the Secretary of State of the State of Delaware a certificate of designation in substantially the form of Exhibit B hereto (the "Certificate of Designation"). 1.07 Independent Obligations. Except as provided herein, (i) the obligations of each Purchaser hereunder is independent of the obligations of each of the other Purchasers, and a breach or default by one Purchaser of its obligations hereunder shall not relieve the other Purchasers of their obligations to consummate the transactions contemplated at the Initial Closing or any Additional Closing and (ii) no Purchaser shall have any liability or obligation to the Company or any other Purchaser with respect to any breach or default by another Purchaser of such other Purchaser's obligations hereunder. ARTICLE II CONDITIONS TO OBLIGATIONS AT THE INITIAL CLOSING 2.01 Conditions to Purchasers' Obligations at the Initial Closing. The obligation of each Purchaser to purchase and pay for the Initial Shares to be purchased by it at the Initial Closing is subject to the satisfaction, on the date hereof, of each of the following conditions set forth in this Section 2.01, except that the cross-receipt required under Section 2.01 (I) below will be satisfied only on the date of the Initial Closing. These conditions are for each Purchaser's sole benefit and may be waived (in whole or in part) by each Purchaser provided that the waiver of any of the following conditions by such individual Purchaser shall not constitute a waiver of such conditions by any other Purchaser. A. The representations and warranties of the Company set forth in Article III hereof shall be true and correct in all material respects as of the date hereof. B. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the date hereof shall have been performed or complied with, except for the filing of the Certificate of Designation, in all material respects. C. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser an amendment and restatement of the existing Stockholders' Agreement, dated as of August 7, 2000, by and among the Company, AOL and Riverview Media Corp. ("Riverview"), as amended, in substantially the form attached hereto as Exhibit C (the "Restated AOL/ODC Stockholders' Agreement"). D. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser an amendment and restatement of the existing Registration Rights Agreement, dated as of August 7, 2000, by and between the Company, AOL and Riverview, in substantially the form attached hereto as Exhibit D (the "Restated AOL/ODC Registration Rights Agreement"). E. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser an amendment to the existing Registration Rights and Stockholders' Agreement, dated as of August 11, 2000, by and among the Company, AOL, Riverview, Banco Itau, Banco Itau, S.A., a Brazilian Sociedade Anonima ("BISA"), Banco Banerj, S.A., a Brazilian Sociedade Anonima ("BBSA") and Itau Bank Limited, a Cayman limited liability company ("Itau Bank"), in substantially the form attached hereto as Exhibit E (the "Restated Itau Agreement"). F. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser a Voting Agreement, to be dated the date hereof, by and among the Company, ODC and AOL (the "Voting Agreement"), in substantially the form attached hereto as Exhibit F and which shall include as an exhibit thereto the Amendment to the Restated Certificate, in the form attached hereto as Exhibit G (the "Amended Certificate," and together with the Restated AOL/ODC Stockholders' Agreement, the Restated AOL/ODC Registration Rights Agreement, the Restated Itau Agreement , the Certificate of Designation and the Voting Agreement, the "Related Agreements"). G. Each Purchaser shall have received all of the following materials or each of the following documents shall have been delivered, prior to or on the date hereof: (i) A certified copy of the Restated Certificate, as amended or restated to the date hereof. (ii) A copy of the Restated By-laws of the Company which has been certified by the Secretary or an Assistant Secretary of the Company to be true, complete and correct; (iii) A certificate of the Secretary or an Assistant Secretary of the Company which shall certify the Company's resolutions of the Board (and its committees and members) providing for the approval of this Agreement and the Related Agreements, the names of the officers of the Company authorized to sign this Agreement, the Related Agreements, the certificates for the Shares and the other documents, instruments or certificates to be delivered pursuant to this Agreement or the Related Agreements by the Company or any of its officers, together with the true signatures of such officers; (iv) A Certificate of the Secretary of State of the State of Delaware as to the due incorporation and good standing of the Company; and (v) A legal opinion from counsel to the Company, in the form attached hereto as Exhibit H. H. Each Purchaser shall have received a copy of the fairness opinion delivered to the Financing Committee of the Board by Merrill Lynch, Pierce, Fenner & Smith Incorporated, or another investment banking firm selected by the Financing Committee of the Board in its sole discretion (the "Investment Bank"). I. A cross-receipt in the form attached hereto as Exhibit I, pursuant to which the Company acknowledges receipt of the purchase price received from each Purchaser in connection with the Initial Closing. 2.02 Conditions to the Company's Obligations to each Purchaser at the Initial Closing. The obligation of the Company to issue and sell the Initial Shares to be sold by it to each Purchaser at the Initial Closing is subject to the satisfaction or waiver on the date hereof, of each of the following conditions set forth in this Section 2.02, except that the cross-receipt required under Section 2.02(E) below will be satisfied only on the date of the Initial Closing: A. The representations and warranties of each Purchaser set forth in Article IV hereof shall be true and correct in all material respects as of the date hereof. B. All covenants, agreements and conditions contained in this Agreement to be performed by each Purchaser on or prior to the date hereof shall have been performed or complied with in all material respects. C. Each Purchaser that is a party thereto shall have duly executed and delivered the Restated AOL/ODC Stockholders' Agreement, the Restated AOL/ODC Registration Rights Agreement, the Restated Itau Agreement and the Voting Agreement D. Each Purchaser shall have delivered an opinion of counsel to the Company evidence, in form and substance reasonably satisfactory to the Company, of its due authorization, execution and delivery of this Agreement and each of the Related Agreements required to be signed by each Purchaser. E. A cross-receipt in the form attached hereto as Exhibit I, pursuant to which each Purchaser acknowledges receipt of the Initial Shares received from the Company in connection with the Initial Closing. The Company may not waive compliance with any of the foregoing conditions as to any Purchaser without the express written consent of each other Purchaser; provided, however, the Company shall not need the respective written consent of any Purchaser that is then in default under this Section 2.02. Any such waiver shall not be deemed a waiver of such condition or any other condition with respect to any other Purchaser. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to each of the Purchasers as follows: 3.01 Organization; Authorization; No Conflict. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has full corporate power and authority to enter into this Agreement and each of the Related Agreements. All corporate and shareholder actions on the part of the Company and its shareholders necessary for the execution of this Agreement and each of the Related Agreements and the issuance and sale of the Shares and performance of its obligations under this Agreement, each of the Related Agreements and the other documents and instruments delivered by it pursuant to this Agreement have been taken or will be taken prior to the Initial Closing. This Agreement is, and each of the Related Agreements, when executed will be, a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the availability or lack of availability of specific performance and other equitable remedies. Neither the execution and delivery of this Agreement and the Related Agreements, nor the issuance and sale of the Shares, nor the consummation of any other transaction contemplated by this Agreement or any of the Related Agreements, has constituted or resulted in or will constitute or result in a default or violation of any term or provision of the Company governing documents or any statutes, rules, regulations, indentures, agreements or other instruments binding upon the Company, which default or violation would have a material adverse effect on the Company or its ability to consummate the transactions contemplated hereby. 3.02 Valid Issuance. The Shares have been reserved for issuance and, when issued and paid for pursuant to the terms of this Agreement, will be duly authorized and validly issued and outstanding, fully paid and nonassessable, and free and clear of any and all Liens and preemptive and other similar rights, except (i) with respect to Shares issued to AOL and/or ODC, as set forth in Section 4.2 and Article 5 of the Restated AOL/ODC Stockholders' Agreement, Article Fourth of the Restated Certificate, Section 5 of the Certificate of Designation, and Article VI hereof, and (ii) with respect to Shares issued to Itau, Section 10 of the Restated Itau Agreement. The Conversion Shares have been reserved for issuance upon conversion of the Shares and, when issued upon conversion thereof in accordance with the terms of the Certificate of Designation, Restated Certificate or Amended Certificate, will be duly authorized, validly issued and outstanding, fully paid and nonassessable, and free and clear of any and all Liens and preemptive and other similar rights, except with respect to Conversion Shares issued to AOL and/or ODC, as set forth in Section 4.2 and Article 5 of the Restated AOL/ODC Stockholders' Agreement, Article Fourth of the Restated Certificate, Section 5 of the Certificate of Designation and Article VI hereof. 3.03 SEC Documents. A. The Company has furnished or made available to each of the Purchasers, or will furnish and make available each report, schedule, form and definitive proxy statement, if any, filed by the Company with the SEC since August 7, 2000 up to and including the date of the Initial Closing, which are all the documents that the Company was or will be required to file (or otherwise did file) with the SEC in accordance with Sections 13, 14 and 15(d) of the Exchange Act prior to the date of the Initial Closing (collectively, the "Company SEC Documents"). Attached hereto as Schedule I is a complete listing of the Company SEC Documents as of the date hereof. As of their respective filing dates, none of the Company SEC Documents (including all exhibits and schedules thereto and documents incorporated by reference therein) contained or will contain any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Company SEC Documents complied or will comply when filed, or in the case of registration statements, as of their respective effective times, in all material respects with the then applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations promulgated by the SEC thereunder. To the actual knowledge of senior management of the Company, none of the statements made in any such Company SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior to the date hereof). B. The financial statements (including the notes thereto) of the Company included or to be included in the Company SEC Documents, complied or will comply as to form in all material respects with the then applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were or will be prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except as may have been indicated in the notes thereto) and fairly present or will fairly present the financial position of the Company as at the dates thereof and the results of its operations, stockholders' equity and cash flows for the period then ended. 3.04 Securities Law Compliance. Assuming that the representations and warranties of the Purchasers set forth in Section 4.01 hereof are true and correct in all material respects, the offer and sale of the Shares made pursuant to this Agreement will be exempt from the registration requirements of the Securities Act. 3.05 Broker Fees. Except for fees to be paid by the Company to the Investment Bank for services rendered by the Investment Bank in connection with the transactions contemplated hereunder, there are, and following the Initial Closing and each Additional Closing there shall be, no claims for brokerage commissions, finders fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Company. 3.06 Approvals and Consents. The Company has obtained all necessary corporate, shareholder and Board approvals (including the favorable recommendation to the Board by the Special Committee of the Board) relating to the consummation of the transactions contemplated hereby. In addition, the Financing Committee of the Board has favorably recommended the consummation of the transactions contemplated hereby to the Board. The Company has also obtained all necessary consents of and made all required filings with any governmental authority or agency or third party required to be obtained by the Company prior to the Initial Closing under applicable law and relating to the consummation of the transactions contemplated hereby, other than any consents or approvals required pursuant to the provisions of the BAT Law which, if not obtained, would not have a material adverse effect on the Company. 3.07 No Prohibitions. No temporary restraining order, preliminary or permanent injunctions or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or provision challenging the transactions contemplated hereby are in effect, nor is any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality seeking any of the foregoing pending. In addition, no Federal, state, local or foreign statute, rule or regulation has been enacted which prohibits, restricts or delays the consummation of the transactions contemplated by this Agreement and by the Related Agreements or any of the conditions to the consummation of such transactions. 3.08 Amended Certificate and Certificate of Designation. Notwithstanding the foregoing, each of the parties hereto acknowledges that the issuance of the Series B Preferred Stock and Series C Preferred Stock hereunder is subject to the requirement that the Amended Certificate is approved by the required votes of the Board (and its committees and members) and stockholders of the Company and that the Amended Certificate is filed with the Secretary of State of the State of Delaware, and that the representations and warranties of the Company in this Article III assume that such approvals will be obtained and that the Amended Certificate will be filed and accepted by the Secretary of State of the State of Delaware prior to the issuance of the Series B Preferred Stock and Series C Preferred Stock hereunder. Each of the parties hereto also acknowledges that the issuance of the Series D Preferred Stock and Series E Preferred Stock hereunder is subject to the requirement that the Certificate of Designation is filed with the Secretary of State of the State of Delaware, and that the representations and warranties of the Company in this Article III assume that the Certificate of Designation will be filed and accepted by the Secretary of State of the State of Delaware prior to the issuance of the Series D Preferred Stock and Series E Preferred Stock hereunder. ARTICLE IV REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS Each of the Purchasers represents and warrants to the Company severally, but not jointly (except that the representations and warranties of ODC are hereby made jointly and severally by Aspen and Atlantis as to such two parties), as follows: 4.01 Investment Representations. Such Purchaser: A. Is experienced in evaluating and investing in companies such as the Company and can bear the economic risk of its investment in the Shares. It has substantial experience in investing in and evaluating private placement transactions of securities in companies similar to the Company and is capable of evaluating the risks and merits of its investment in the Company and has the capacity to protect its own interests. B. Is acquiring the Shares for investment for its own account and not with a view to, or for resale in connection with, any distribution thereof, and it has no present intention of selling or distributing the Shares or any of the Conversion Shares in contravention of the Securities Act. The Purchaser has not been formed for the specific purpose of acquiring the Shares. Each acquisition by a Purchaser of Shares hereunder shall constitute a confirmation of this representation by such Purchaser. C. Acknowledges that, because they have not been registered under the Securities Act, the Shares it is purchasing and the underlying Conversion Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. Each Purchaser understands and agrees that (i) no U.S. or foreign Federal, state or local governmental authority has made any finding or determination relating to the fairness of the terms of the investment in the Company proposed hereunder and the Shares have not been registered under the Securities Act and applicable state or foreign securities laws, and, therefore, cannot be resold unless they are subsequently registered under the Securities Act and applicable state and foreign securities laws or unless an exemption from such registration is available; (ii) if an exemption from registration is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale and the holding period for the Shares and the Conversion Shares, whatever the case may be, and other requirements outside of the Company's or such Purchaser's control, and which the Company is under no obligation to, and which it may not be able to satisfy; (iii) such Purchaser may not resell or otherwise dispose of all or any part of the Shares except as permitted by law and all other regulations promulgated under the Securities Act and applicable state and foreign securities laws; (iv) except as is expressly set forth in the Restated AOL/ODC Registration Rights Agreement, with respect to AOL and ODC, and the Restated Itau Agreement, with respect to Banco Itau, the Company does not have any obligation to register the Shares under the Securities Act or any state or foreign securities laws, and the Company has no present intention of effecting any such registration; and, (v) without prejudice to the Company's obligations pursuant Section 9.5 of the Restated Itau Agreement or Section 8.5 of the Restated AOL/ODC Registration Rights Agreement, Regulation S, Rule 144 or Rule 144A under the Securities Act may not be available to such Purchaser as a basis for exemption from registration of the Shares under the Securities Act. 4.02 Organization; Authorization; No Conflict. Such Purchaser is a corporation, sociedade anonima or other limited liability entity duly organized and validly existing under the laws of the jurisdiction of its organization and is in good standing under such laws. Such Purchaser has full power and authority to enter into this Agreement and each of the Related Agreements to which it is a party. All corporate or other limited liability entity actions on the part of such Purchaser necessary for the performance of its obligations under this Agreement, each of the Related Agreements to which it is a party and the other documents and instruments delivered by it pursuant to this Agreement have been taken or will be taken prior to the Initial Closing. This Agreement is, and each of the Related Agreements to which it is a party, when executed will be, a legal, valid and binding obligation of such Purchaser, enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and the availability or lack of availability of specific performance and other equitable remedies. Neither the execution and delivery of this Agreement or the purchase of the Shares, nor the consummation of any transaction contemplated by this Agreement, has constituted or resulted in or will constitute or result in a default or violation of any term or provision of any of such Purchaser's governing documents or any statutes, rules, regulations, indentures, agreements or other instruments binding upon such Purchaser. 4.03 Brokers Fees. Except for fees to be paid by the Company to the Investment Bank for services rendered by the Investment Bank in connection with the transactions contemplated hereunder, there are, and following the Initial Closing and each Additional Closing there shall be, no claims for brokerage commissions, finders fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of such Purchaser. 4.04 Disclosure of Information. Such Purchaser has had an opportunity to discuss the Company's business, management, financial affairs and the terms and conditions of the offering of the Shares with the management of the Company. 4.05 Legends. Such Purchaser understands that the Shares and the Conversion Shares, and any securities issued in respect of or in exchange for the Shares or the Conversion Shares, may bear one or all of the following legends: A. "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE OFFERED, PLEDGED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM." B. Any legend required pursuant to any other agreement between the Company and such Purchaser. C. Any legend required by the "blue-sky" laws of any state to the extent such laws are applicable to the Shares represented by the certificate so legended. 4.06 Prior HSR Filings. Each of the Purchasers represents and warrants that it (or, in the case of ODC and Banco Itau, its predecessor in title) previously has made, on a timely basis, all required filings pursuant to the pre-merger notification requirements of the HSR Act and, in the case of Banco Itau's predecessor in title, previously has made timely notifications pursuant to the BAT Law, in connection with the initial public offering by the Company of its Class A Common Stock and such Purchasers' purchase of such shares therein. Such Purchaser will make any required filing pursuant to the provisions of the HSR Act and, if applicable, the BAT Law, in connection with the transactions contemplated hereby. 4.07 Approvals and Consents. Each of the Purchasers represents and warrants that it has obtained all necessary corporate, shareholder and Board of Director approvals (or, if such Purchaser is not a corporation, all approvals that are substantially similar to shareholder and Board of Director approvals) relating to the consummation of the transactions contemplated hereby, and has also obtained all necessary consents of and made all required filings with any governmental authority or agency or third party required to be obtained by each Purchaser prior to the Initial Closing under applicable law and relating to the consummation of the transactions contemplated hereby. 4.08 No Prohibitions. No temporary restraining order, preliminary or permanent injunctions or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or provision challenging the transactions contemplated hereby are in effect, nor is any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality seeking any of the foregoing pending. In addition, no Federal, state, local or foreign statute, rule or regulation has been enacted which prohibits, restricts or delays the consummation of the transactions contemplated by this Agreement and by the Related Agreements or any of the conditions to the consummation of such transactions. In addition to the representations and warranties set forth in Sections 4.01 through 4.08 above, Banco Itau hereby represents and warrants as follows: 4.09 Banco Itau and BISA. For all intents and purposes, Banco Itau and BISA are the same legal entity, and BISA is liable hereunder as if it were a party to this Agreement for all liabilities, obligations and agreements of Banco Itau hereunder. ARTICLE V AFFIRMATIVE COVENANTS 5.01 Certificate of Designation On or before seven (7) business days after the date hereof, the Company shall file the Certificate of Designation with the Secretary of State of the State of Delaware. 5.02 Cooperation. From and after the date of this Agreement, upon the request of the Purchasers or the Company, the parties hereto shall execute and deliver such instruments, documents and other writings and take all such further actions as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement and the issuance and sale of the Shares pursuant hereto, including, without limitation, making timely all such filings as may be required pursuant to the HSR Act and seeking all such consents and approvals as may be required to be obtained by such party to consummate the transactions contemplated by this Agreement and the Related Agreements. 5.03 Reasonable Efforts. From and after the date of this Agreement, each of the Company and the Purchasers shall use reasonable efforts to take such action within their reasonable control as will be required to satisfy their respective conditions under Article II hereof. ARTICLE VI DEFAULT IN PAYMENTS 6.01 Defaults by AOL. Upon any default by AOL in the timely payment of the full amount owed the Company with respect to any Shares to be purchased by AOL at the Initial Closing or any Additional Closing (each, an "AOL Payment Default"), the Company, Aspen and Atlantis shall have the right to effect any or all of the following remedies: A. The Company shall have all remedies available at law or in equity upon any AOL Payment Default. Interest shall accrue on the amount of each AOL Payment Default at the Default Rate from the date due until the date paid in full. If any legal proceedings relating to an AOL Payment Default are commenced by the Company, the prevailing party in such proceedings shall be entitled to its reasonable attorneys' fees and costs in such proceeding. In addition, for the period commencing on the first day of the month in which any such AOL Payment Default first arises until such AOL Payment Default is fully cured by AOL, AOL and each of its Affiliates and Subsidiaries shall not be entitled to any dividends or other distributions in respect of any of their Company Securities, which dividends and distributions shall be applied to such AOL Payment Default and, only after such AOL Payment Default shall be fully cured by AOL, be paid to AOL and its Affiliates or Subsidiaries, as applicable. B. Notwithstanding anything to the contrary contained in subsection A hereof, immediately upon the occurrence of an AOL Payment Default, the Company shall notify each of Aspen and Atlantis of such AOL Payment Default, and, in addition to the Company's exercise of any additional remedy hereunder, Aspen and Atlantis shall each have the individual right, but not the obligation, to cure all or any portion of the AOL Payment Default and to receive from the Company, subject to Section 1.03 hereof, a number of Shares equal to the quotient obtained by dividing (i) the aggregate amount of the applicable AOL Payment Default that is paid by Aspen and/or Atlantis by (ii) the Stipulated Price (the "AOL Default Shares"). Such right shall be exercised by delivering a written notice to the Company and AOL within five (5) Business Days after the date of the Company's notice delivered pursuant to this subsection, which exercise notice shall specify the number of Shares which Aspen or Atlantis, as applicable, is electing to purchase pursuant to this provision. If the aggregate amount of the elections made by Aspen and Atlantis pursuant to timely election notices exceeds the aggregate number of AOL Default Shares, then the electing parties shall be entitled to acquire such AOL Default Shares pro rata based on such electing party's share ownership of the Company on the date hereof. The closing of any such sale shall be consummated at a date to be mutually agreed by the Company and the electing parties, which date shall be no later than ten (10) Business Days after the date of the Company's notice delivered pursuant to this subsection. C. AOL hereby grants to each of Aspen and Atlantis an option (the "AOL Call Option") to purchase from AOL, free and clear of any and all Liens and preemptive and other similar rights (except as contemplated by the Related Agreements), and AOL shall be obligated to sell to Aspen and/or Atlantis, as applicable, all or any portion, as determined by Aspen and/or Atlantis, of such number of shares of Series B Preferred Stock, Series D Preferred Stock or Class B Common Stock, whichever is selected by Aspen and/or Atlantis in their sole discretion, as is equal to the total number of AOL Default Shares purchased by it pursuant to the provisions of subsection B above. Aspen and/or Atlantis, as applicable, may exercise the AOL Call Option by written notice (the "AOL Purchase Notice") to AOL, with a copy to the Company, which AOL Purchase Notice must be delivered to AOL within ten (10) days after the consummation of the acquisition of the AOL Default Shares by such party from the Company, which AOL Purchase Notice shall specify the number and type of shares as to which the party delivering such notice is exercising the AOL Call Option. The price at which the AOL Call Option shall be exercised shall be equal to eighty percent (80%) of the Stipulated Price. The purchase and sale of the shares owned by AOL to Aspen and/or Atlantis, as applicable, pursuant to this subsection shall take place at the principal place of business of the Company (unless otherwise agreed by AOL, Aspen and/or Atlantis, as applicable), on a date specified by Aspen and/or Atlantis, as applicable, but in any event no later than thirty (30) days after the AOL Purchase Notice has been sent pursuant to this subsection, unless otherwise agreed by AOL, Aspen and/or Atlantis, as applicable (the "AOL Call Option Closing"). At the AOL Call Option Closing, Aspen and/or Atlantis, as applicable, shall tender and AOL shall accept payment of the purchase price by certified or bank check or wire transfer, and AOL shall deliver to Aspen and/or Atlantis, as applicable, in exchange therefor the certificate(s) for the shares being acquired pursuant to the AOL Purchase Notice, accompanied by duly executed instruments of transfer. 6.02 Defaults by ODC. Upon any default by ODC in the timely payment of the full amount owed the Company with respect to any Shares to be purchased by ODC at the Initial Closing or any Additional Closing (each, an "ODC Payment Default"), the Company and AOL shall have the right to effect any or all of the following remedies: A. The Company shall have all remedies available at law or in equity upon any ODC Payment Default. Interest shall accrue on the amount of each ODC Payment Default at the Default Rate from the date due until the date paid in full. If any legal proceedings relating to an ODC Payment Default are commenced by the Company, the prevailing party in such proceedings shall be entitled to its reasonable attorneys' fees and costs in such proceeding. In addition, for the period commencing on the first day of the month in which any such ODC Payment Default first arises until such ODC Payment Default is fully cured by ODC, ODC and each of its Affiliates and Subsidiaries shall not be entitled to any dividends or other distributions in respect of any of their Company Securities, which dividends and distributions shall be applied to such ODC Payment Default and, only after such ODC Payment Default shall be fully cured by ODC, be paid to ODC and its Affiliates or Subsidiaries, as applicable. B. Notwithstanding anything to the contrary contained in subsection A hereof, immediately upon the occurrence of an ODC Payment Default, the Company shall notify AOL of such ODC Payment Default, and, in addition to the Company's exercise of any additional remedy hereunder, AOL shall have the right, but not the obligation, to cure all or any portion of the ODC Payment Default and to receive from the Company, subject to Section 1.03 hereof, a number of Shares equal to the quotient obtained by dividing (i) the aggregate amount of the applicable ODC Payment Default that is paid by AOL by (ii) the Stipulated Price (the "ODC Default Shares"). Such right shall be exercised by delivering a written notice to the Company and ODC within five (5) Business Days after the date of the Company's notice delivered pursuant to this subsection, which exercise notice shall specify the number of Shares which AOL is electing to purchase pursuant to this provision. The closing of any such sale shall be consummated at a date to be mutually agreed by the Company and AOL, which date shall be no later than ten (10) Business Days after the date of the Company's notice delivered pursuant to this subsection. C. ODC hereby grants to AOL an option (the "ODC Call Option") to purchase from ODC, free and clear of any and all Liens and preemptive and other similar rights (except as contemplated by the Related Agreements), and ODC shall be obligated to sell to AOL all or any portion, as determined by AOL, of such number of shares of Series C Preferred Stock, Series E Preferred Stock or Class C Common Stock, whichever is selected by AOL in its sole discretion, as is equal to the total number of ODC Default Shares purchased by it pursuant to the provisions of subsection B above. AOL may exercise the ODC Call Option by written notice (the "ODC Purchase Notice") to ODC, with a copy to the Company, which ODC Purchase Notice must be delivered to ODC within ten (10) days after the consummation of the acquisition of the ODC Default Shares by such party from the Company, which ODC Purchase Notice shall specify the number and type of shares as to which the party delivering such notice is exercising the ODC Call Option. The price at which the ODC Call Option shall be exercised shall be equal to eighty percent (80%) of the Stipulated Price. The purchase and sale of the shares owned by ODC to AOL, pursuant to this subsection shall take place at the principal place of business of the Company (unless otherwise agreed by ODC and AOL), on a date specified by AOL but in any event no later than thirty (30) days after the ODC Purchase Notice has been sent pursuant to this subsection, unless otherwise agreed by ODC and AOL(the "ODC Call Option Closing"). At the ODC Call Option Closing, AOL shall tender and ODC shall accept payment of the purchase price by certified or bank check or wire transfer, and ODC shall deliver to AOL in exchange therefor the certificate(s) for the shares being acquired pursuant to the ODC Purchase Notice, accompanied by duly executed instruments of transfer. 6.03 Default by Banco Itau. Upon any default by Banco Itau in the timely payment of the full amount owed the Company with respect to any Shares to be purchased by Banco Itau at the Initial Closing (a "Banco Itau Payment Default") the Company shall be entitled to receive liquidated damages in the amount of 20% of the total amount of the Banco Itau Payment Default. The Company and Banco Itau have agreed that the amount of harm that may be suffered by the Company through a Banco Itau Payment Default is not readily ascertainable and the amount set forth herein reasonably estimates the value of such harm to the Company and is not in the nature of a penalty. Such damages shall be immediately due and owing upon the Banco Itau Payment Default and shall accrue interest at a rate of 18% per annum until such time as they are paid in full. ARTICLE VII DEFINITIONS The following terms shall, for the purposes of this Agreement, have the following meanings (terms defined in the singular or the plural include the plural or the singular, as the case may be): "Additional Closing" has the meaning set forth in Section 1.02. "Affiliate" of any Person shall mean any other Person that, directly or indirectly, controls, is under common control with or is controlled by that Person. For purposes of this definition, "control" (including, with its correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. "Agreement" has the meaning set forth in the recitals above. "Amended Certificate" has the meaning set forth in Section 2.01 F. "AOL" has the meaning set forth in the recitals above. "AOL Call Option" has the meaning set forth in Section 6.01 C. "AOL Call Option Closing" has the meaning set forth in Section 6.01 C. "AOL Default Shares" has the meaning set forth in Section 6.01 B. "AOL Payment Default" has the meaning set forth in Section 6.01. "AOL Purchase Notice" has the meaning set forth in Section 6.01 C. "Aspen" has the meaning set forth in the recitals above. "Aspen Series E Shares" has the meaning set forth in the recitals above. "Atlantis" has the meaning set forth in the recitals above. "Atlantis Series E Shares" has the meaning set forth in the recitals above. "Banco Itau" has the meaning set forth in the recitals above. "Banco Itau Class A Shares" has the meaning set forth in the recitals above. "Banco Itau Payment Default" has the meaning set forth in Section 6.03. "BAT Law" shall mean Resolution #15/98 of the Conselho Administrativo de Defesa Economica promulgated thereunder. "BBSA" shall have the meaning set forth in Section 2.01 E. "BISA" shall have the meaning set forth in Section 2.01 E. "Board" shall mean the Company's Board of Directors. "Business Day" shall mean any day, other than a Saturday or Sunday, on which Federally chartered banks in the United States generally are open for business. "Certificate of Designation" has the meaning set forth in Section 1.06. "Cisneros Family" shall mean Ricardo Cisneros, Gustavo Cisneros and/or their lineal descendants, individually or collectively and/or any trusts for the exclusive benefit of any one or more of such persons. "Class A Common Stock" has the meaning set forth in the recitals above. "Class B Common Stock" has the meaning set forth in Section 1.05. "Class C Common Stock" has the meaning set forth in Section 1.05. "Common Shares" has the meaning set forth in the recitals above. "Common Stock" has the meaning set forth in Section 1.05. "Company" has the meaning set forth in the recitals above. "Company SEC Documents" has the meaning set forth in Section 3.03. "Company Securities" shall mean all shares of the Company's stock, and all options, warrants and other rights to acquire shares of the Company's stock. "Conversion Shares" has the meaning set forth in Section 1.05. "Default Rate" shall mean a per annum rate of interest equal to the Prime Rate plus two hundred (200) basis points. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended. "Funding Notice" has the meaning set forth in Section 1.04 "HSR Act" shall mean Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder. "Initial Closing" has the meaning set forth in Section 1.01. "Initial Shares" has the meaning set forth in Section 1.01. "Investment Bank" has the meaning set forth in Section 2.01 H. "Itau Bank" has the meaning set forth in Section 2.01 E. "Lien" shall mean (i) any interest in property (whether real, personal or mixed and whether tangible or intangible), or other restriction including, without limitation, any lien or security interest which secures an obligation owed to, or a claim by, a person other than the owner of such property, whether such interest is based on the common law, statute or contract, including, without limitation, any such interest arising from a lease, mortgage, charge, pledge, security agreement, conditional sale, trust receipt or deposit in trust, or arising from a consignment of bailment given for security purposes, (ii) any encumbrance upon such property which does not secure such an obligation, or (iii) any exception to or defect in the title to or ownership interest in such property. "Mintz Levin" has the meaning set forth in Section 1.01. "ODC" has the meaning set forth in the recitals above. "ODC Call Option" has the meaning set forth in Section 6.02 C. "ODC Call Option Closing" has the meaning set forth in Section 6.02 C. "ODC Default Shares" has the meaning set forth in Section 6.02 B. "ODC Payment Default" has the meaning set forth in Section 6.02. "ODC Purchase Notice" has the meaning set forth in Section 6.02 C. "Person" shall mean an individual, sole proprietorship, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, mutual company, joint stock company, estate, union, employee organization, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or a Governmental Authority. "Prime Rate" shall mean, for any date, the rate of interest per annum publicly announced from time to time as the prime rate in effect as of such date as reported in the "Money Rates" column of the Eastern Edition of The Wall Street Journal or other comparable source as agreed to by the Parties if The Wall Street Journal is not then publishing such figures. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. "Related Agreements" has the meaning set forth in Section 2.01 F. "Remaining Shares" has the meaning set forth in Section 1.02 A. "Restated AOL/ODC Registration Agreement" has the meaning set forth in Section 2.01 D. "Restated AOL/ODC Stockholders' Agreement" has the meaning set forth in Section 2.01 C. "Restated Certificate" has the meaning set forth in Section 1.05. "Restated Itau Agreement" has the meaning set forth in Section 2.01 E. "Riverview" has the meaning set forth in Section 2.01 C. "SEC" shall mean the United States Securities and Exchange Commission. "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder, as amended. "Series B Preferred Stock" has the meaning given in the Restated Certificate. "Series C Preferred Stock" has the meaning given in the Restated Certificate. "Series D Preferred Stock" has the meaning set forth in the recitals above. "Series D Shares" has the meaning set forth in the recitals above. "Series E Preferred Stock" has the meaning set forth in the recitals above. "Series E Shares" has the meaning set forth in the recitals above. "Shares" has the meaning set forth in the recitals above. If the Amended Certificate has been filed, the term "Shares" shall also mean Series B Preferred Stock and Series C Preferred Stock purchased hereunder. "Special Committee" has the meaning given in the Restated Certificate. "Stipulated Price" has the meaning set forth in the recitals above. "Subsidiary" has the meaning given in the Restated Certificate. "Voting Agreement" shall mean the Voting Agreement, dated as of March 30, 2001, by and among AOLA, ODC and AOL. "Voting Stock" shall mean securities having the right to vote generally in any election of Directors of the Company (other than solely by reason of the occurrence of an event). "Wholly Owned Affiliate" shall mean with respect to any Person any other Person which is directly or indirectly wholly owned by such Person, directly or indirectly wholly owns such Person or is directly or indirectly wholly owned by the same Person as such Person, with such ownership to mean possession of both 100% of the equity interest and 100% of the voting interest, except for directors' qualifying shares, if any. Any Person that is directly or indirectly wholly owned by the Cisneros Family shall be deemed a Wholly Owned Affiliate of ODC, and any Person that is directly or indirectly wholly owned by the AOL Time Warner, Inc. a Delaware corporation, shall be deemed a Wholly Owned Affiliate of AOL. ARTICLE VIII TERMINATION; SURVIVAL 8.01 Termination by Mutual Consent. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time by the mutual written consent of the Company and all of the Purchasers. 8.02 Effect of Termination and Abandonment. Upon termination of this Agreement and abandonment of the transactions contemplated hereby pursuant to this Article VIII, no party hereto (or any of its directors, managers, officers or other Affiliates) shall have any liability or further obligation to any other party to this Agreement with respect to the subject matters of this Agreement, other than, solely with respect to a party (and not its directors, managers, officers or other Affiliates) for its breach of this Agreement or any Related Agreement to which it is a party and the other documents and agreements executed in connection with the transactions contemplated thereby. 8.03 Termination by Expiry of Time. Any party may terminate this Agreement if the Initial Closing has not occurred on or prior to May 1, 2001, except that a party may not avail itself of this provision if such failure is a result of breach by such party of any of its representations, warranties or covenants contained herein. 8.04 Survival of Representations and Warranties. All representations and warranties made in this Agreement or any other instrument or document delivered in connection herewith (other than the Related Agreements, which representations and warranties, if any, shall survive for the periods specified therein) shall survive for a period of eighteen months from and after the Initial Closing other than the representations set forth in the first three sentences of Section 3.01, each of which shall survive for a period of six (6) years from the date of the Initial Closing. ARTICLE IX MISCELLANEOUS 9.01 No Waiver; Cumulative Remedies. No failure or delay on the part of any party to this Agreement in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. 9.02 Addresses for Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid. If to the Purchasers: To AOL: America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323, USA Attn: President, AOL International Fax No.: (703) 265-2502 With a copy (which shall not constitute notice) to: America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323, USA Attn: General Counsel Fax No.: (703) 265-3992 To ODC: Aspen Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Attn: General Counsel Fax No.: (305) 447-1389 and Atlantis Investments LLC c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Attn: General Counsel Fax No.: (305) 447-1389 With a copy (which shall not constitute notice) to: Milbank, Tweed, Hadley and McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Attn: Guilford Gaylord, Esq. Fax No.: (212) 530-5219 To Banco Itau: Banco Itau, S.A. - Cayman Branch Rua Boa Vista 176 Sao Paulo, Brazil Attn: General Counsel Fax No.: 55-11-5019-1322 With a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036-6522 Attn: Paul T. Schnell, Esq. Fax No.: (212) 735-2000 If to the Company: America Online Latin America, Inc. 6600 N. Andrews Avenue Suite 500 Ft. Lauderdale, FL 33309 Attn: Chief Executive Officer Fax: (954) 233-1801 With a copy (which shall not constitute notice) to: America Online Latin America, Inc. 6600 N. Andrews Avenue Suite 500 Ft. Lauderdale, FL 33309 Attn: General Counsel Fax: (954) 233-1805 All notices, requests, consents and other communications hereunder shall be deemed to have been given (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above, (ii) if made by telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next Business Day (or if sent overseas, on the second Business Day) following the day such notice is delivered to the courier service, or (iv) if sent by registered or certified mail, on the date delivery is made at the address of such party set forth above. 9.03 Costs, Expenses and Taxes. Except as otherwise provided herein, each of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby whether or not the transactions contemplated hereby are consummated. Notwithstanding the foregoing, (i) the Company will promptly reimburse each of the Purchasers for its reasonable legal fees and expenses, not to exceed $25,000 per Purchaser (with Aspen and Atlantis considered one Purchaser for purposes hereof), incurred in connection with the transactions contemplated by this Agreement, and (ii) the Company shall pay any and all stamp or other similar taxes payable or determined to be payable in connection with the execution and delivery of this Agreement, the issuance of the Shares and the other instruments and documents to be delivered hereunder or thereunder, and agrees to save the Purchasers harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes. 9.04 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and the Purchasers and their respective heirs, successors and assigns, and may not be assigned by the Company or by any Purchaser without the prior written consent of each of the other parties hereto; provided, however, that a Purchaser may assign this Agreement (i) to a Wholly Owned Affiliate of such Purchaser or (ii) to any entity not less than 75% of the outstanding equity securities and voting power of which are owned, directly or indirectly, by such Purchaser. Notwithstanding anything in the immediately preceding sentence to the contrary, this Agreement may not be assigned without the assignee hereof explicitly agreeing to be bound by the terms and conditions of the relevant Related Agreements. No such assignment shall relieve such assigning Purchaser from any of its obligations hereunder. 9.05 Prior Agreements. This Agreement, the Related Agreements and the other instruments executed and delivered herewith constitute the entire agreement between the parties and supersede any prior understandings or agreements concerning the subject matter hereof, including specifically the letter agreement, dated February 13, 2001, by and among the parties. 9.06 Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of a provision contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement; but this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provisions or part reformed so that it would be valid, legal and enforceable to the maximum extent possible. 9.07 Governing Law. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, USA, without regard to its principles of conflicts of laws. To the extent otherwise applicable, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the construction or interpretation of this Agreement. Each party irrevocably consents to the exclusive jurisdiction of the state and Federal courts located in the State of Delaware for all disputes arising under or related to this Agreement, which are subject to litigation hereunder including actions seeking injunctive relief, and to service of process in any jurisdiction in any such action by means of notice delivered pursuant to Section 9.02 hereof; provided, however, to permit a party to enforce a judgment each party also irrevocably consents to the jurisdiction of the courts in the place where such judgment enforcement is sought. Each party waives (i) any objection it otherwise may have to the personal jurisdiction and venue of the courts designated in this Section 9.07 and (ii) the right to trial by jury. 9.08 Headings. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. 9.09 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.10 Further Assurances. From and after the date of this Agreement, upon the request of any Purchaser or the Company, the Company and the Purchasers shall execute and deliver such instruments, documents and other writings as may be reasonably necessary or desirable to confirm and carry out and to effectuate fully the intent and purposes of this Agreement. 9.11 Waiver of Preemptive Rights. Each of the Purchasers hereby waives any and all preemptive rights it may have in respect of the transactions contemplated hereby. 9.12 Interpretation. The parties hereto acknowledge and agree that: (i) each party and its counsel have reviewed the terms and provisions of this Agreement; (ii) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement; and (iii) the terms and provisions of this Agreement shall be construed fairly as to the parties hereto and not in favor of or against any party, regardless of which party was generally responsible for the preparation of this Agreement. Except as the context may otherwise require, whenever used herein, the singular number shall include the plural, the plural shall include the singular, the use of any gender shall include all persons. All references to dollars or the symbol "$" shall refer to United States Dollars. 9.13 Amendments, Waivers and Consents. Changes in, termination or amendments of or additions to this Agreement may be made only by mutual agreement of all of the parties hereto. Except as provided in Article II hereof, any waiver or consent may be given subject to satisfaction of conditions stated therein and any waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. [BALANCE OF PAGE LEFT BLANK INTENTIONALLY] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as an instrument under seal as of the date first above written. PURCHASERS: AMERICA ONLINE, INC. By: Name: Title: ASPEN INVESTMENTS LLC, By: Name: Title: ATLANTIS INVESTMENTS LLC By: Name: Title: BANCO ITAU, S.A. - CAYMAN BRANCH By: Name: Title: By: Name: Title: THE COMPANY: AMERICA ONLINE LATIN AMERICA, INC. By: Name: Title: EXHIBIT A Dollar Amount Dollar Amount Dollar Amount At First At Second Name and Address of Purchaser At Initial Closing Additional Closing Additional Closing - ----------------------------- ------------------ ------------------ ------------------ America Online, Inc. $22,112,691.67 $22,112,691.67 $22,112,691.66 22000 AOL Way Dulles, VA 20166-9323, USA Aspen Investments LLC $10,632,841.67 $10,632,841.67 $10,632,841.66 c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Atlantis Investments LLC $10,632,841.67 $10,632,841.67 $10,632,841.66 c/o Finser Corporation 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 Banco Itau, S.A. - Cayman Branch $19,864,875.00 N/A N/A Rua Boa Vista 176 Sao Paulo, Brazil
SCHEDULE I 1. Form 10-K for the fiscal year ended June 30, 2000, filed September 28, 2000 (file number 00031181) 2. Form 10-Q for the fiscal quarter ended September 30, 2000, filed November 14, 2000 (file number 00031181) 3. Form 8-K, filed November 22, 2000 (file number 00031181) 4. Form 8-K, filed January 22, 2001 (file number 00031181) 5. Form 8-K, filed February 28, 2001 (file number 00031181) EX-9 8 0008.txt VOTING AGREEMENT Exhibit 9 VOTING AGREEMENT Voting Agreement, dated as of March 30, 2001 (this "Agreement"), by and among America Online Latin America, Inc., a Delaware corporation (the "Company"), and each of the record and/or beneficial stockholders of the Company identified on Schedule A hereto (individually, so long as owning of record and/or beneficially any Shares, a " Voting Stockholder" and, collectively, the "Voting Stockholders"). Whereas the Company, the Voting Stockholders and another stockholder of the Company have, contemporaneously with the execution and delivery of this Agreement, entered into a Stock Purchase Agreement dated as of March 30, 2001 (the "Stock Purchase Agreement") providing for the purchase by such stockholders of shares of the Company's capital stock pursuant to the terms and conditions thereof (capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Stock Purchase Agreement); Whereas, as contemplated by the Stock Purchase Agreement and as provided in the Certificate of Designations, Preferences and Rights for Series D Redeemable Convertible Preferred Stock $.01 par value per share ("Series D Stock"), and Series E Redeemable Convertible Preferred Stock, $.01 par value per share ("Series E Stock"), of the Company in the form of Exhibit I hereto (the "Certificate of Designations"), which is contemplated to be filed and to become effective immediately prior to the issuance and sale of shares of Series D Stock and Series E Stock and thereby to amend the Restated Certificate of Incorporation of the Company as in effect as of the date hereof (the "Current Certificate"), the shares of Series D Stock and Series E Stock will convert into shares of Series B Redeemable Convertible Preferred Stock, $.01 par value per share, and Series C Redeemable Convertible Preferred Stock, $.01 par value per share, of the Company, respectively (the "Conversion"), immediately upon the effectiveness of a Restated Certificate of Incorporation substantially in the form of Exhibit II hereto (the "Restated Certificate"), after the approval by the stockholders of the Company of a proposal to adopt the Restated Certificate; Whereas, certain of the amendments that would be effected by the Restated Certificate may require the approving vote of the holders of a majority of the outstanding shares of the Company's Class A Common Stock, $.01 par value per share (the "Class A Stock"), voting separately as a class (the "Class A Vote"), while other amendments that would be so effected will not require the Class A Vote (the "General Amendments"); Whereas, as an essential condition and inducement to the Company and the Voting Stockholders to enter into the Stock Purchase Agreement and in consideration therefor, the Company and the Voting Stockholders have agreed to enter into this Agreement; and Whereas, as of the date hereof, the Voting Stockholders own of record and/or beneficially shares of the Company's capital stock as set forth opposite their respective names on Schedule A hereto (together with all additional shares of the Company's capital stock which any of them shall hereafter own of record and/or beneficially, "Shares") (beneficial ownership of shares of capital stock of the Company for purposes of this Agreement being understood and agreed to include, without limitation, the holding of sole or shared voting power with respect to such shares, notwithstanding the transfer of record ownership and/or the economic benefit associated with such shares) and desire to enter into this Agreement; Now, therefore, in consideration of the foregoing and the mutual covenants and agreements contained herein and in the Stock Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows: Article 1 Voting of Shares 1.1 Voting Agreement. Each Voting Stockholder hereby agrees to (a) appear, in person or by proxy, or cause any other holder of record of any Shares owned beneficially by such Voting Stockholder on any applicable record date (the "Record Holder") to appear, in person or by proxy, so that all the Shares owned of record and/or beneficially by such Voting Stockholder are counted for the purpose of obtaining a quorum at any meeting of stockholders of the Company, and at any adjournment or adjournments thereof, at which any proposal to adopt the Restated Certificate or, subject to Section 1.3, any other proposal necessary or advisable to carry into effect the purpose and intent of this Agreement is presented for consideration and action by the stockholders of the Company (a "Meeting") and (b) vote, or cause the Record Holder to vote, in person or by proxy, or, to the extent written consents are solicited, to execute and deliver, or cause the Record Holder to execute and deliver, written consents with respect to, all Shares owned of record and/or beneficially by such Voting Stockholder as of the record date for determining stockholders of the Company entitled to vote, or execute and deliver written consents, in favor of (i) any proposal to adopt the Restated Certificate, (ii) any proposal necessary to permit the Conversion to be effected and the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of such shares) to be authorized for quotation or listing on the NASDAQ Stock Market or any other national securities exchange on which the common stock of the Company is then quoted or listed, (iii) any proposal to amend the Current Certificate as will be amended by the Certificate of Designations by adoption of an amendment thereto incorporating the General Amendments if the Restated Certificate is not adopted at a Meeting at which a proposal to do so is first proposed (the "First Meeting") and the provisions of Section 3.5 are therefore applicable and (iv) subject to Section 1.3, any other proposal the approval of which is necessary or advisable to carry into effect the purpose and intent of this Agreement. Each Voting Stockholder shall also vote against, and cause the Record Holder to vote against, and refrain, and cause the Record Holder to refrain, from executing and delivering written consents in favor of, any proposal which is contrary to or inconsistent with any proposal in favor of which the Voting Stockholders are required to vote as provided hereinabove in this Section 1.1. Each Voting Stockholder shall also vote, and cause the Record Holder to vote, in favor of the adjournment, to another time, date and place, of any Meeting at which any proposal in favor of which the Voting Stockholders are required to vote as provided hereinabove in this Section 1.1 is presented for consideration and action by the stockholders of the Company if a quorum for such Meeting is lacking or if the votes cast at such Meeting in favor of any such proposal are insufficient to approve such proposal. 1.2 Grant of Proxy. In furtherance of the foregoing, each Voting Stockholder, by this Agreement, with respect to all Shares now or hereafter owned of record and/or beneficially by such Voting Stockholder, does hereby constitute and appoint Gerald Sokol, Jr. and Cristina Pieretti, and each of them acting singly, with full power of substitution, from the date hereof to the time of termination of this Agreement, as such Voting Stockholder's true and lawful attorneys-in-fact and proxies (each of them, its "Proxy"), for and in such Voting Stockholder's name, place and stead, to vote all such Shares at every Meeting, including the right to sign such Voting Stockholder's name (as a stockholder of the Company) to and deliver any consent, certificate or other document relating to the Shares owned by such Voting Stockholder that the Delaware General Corporation Law (the "DGCL") permits or requires, to effect the agreement to vote, or execute and deliver written consents, under Section 1.1. The foregoing appointment by each Voting Stockholder of Gerald Sokol, Jr. and Cristina Pieretti as such Voting Stockholder's attorneys-in-fact and Proxies is irrevocable to the fullest extent permitted by Delaware law and is coupled with an interest. Each Voting Stockholder hereby revokes any other power-of-attorney, proxy or appointment previously given, granted or made by such Voting Stockholder with respect to Shares owned of record and/or beneficially by such Voting Stockholder insofar as the exercise of any such other power-of-attorney, proxy or appointment could be contrary to or inconsistent with the agreement to vote, or execute and deliver written consents, under Section 1.1. By the signature of its authorized signatory below, the Company hereby acknowledges that the power-of-attorney given and the proxy granted hereby is in a form acceptable to, and will be recognized by, the Company. 1.3 Matters Related to Adoption of the Restated Certificate; Special Committee. Each Voting Stockholder, and Proxies acting for such Voting Stockholder, shall be obligated under Section 1.1 to vote, or execute and deliver written consents, in favor of any proposal (other than (i) a proposal to adopt the Restated Certificate, (ii) any proposal necessary to permit the Conversion to be effected and the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of such shares) to be authorized for quotation or listing on the NASDAQ Stock Market or any other national securities exchange on which the common stock of the Company is then quoted or listed and (iii) any proposal to amend the Current Certificate as will be amended by the Certificate of Designations by adoption of an amendment thereto incorporating the General Amendments if the Restated Certificate is not adopted at the First Meeting and the provisions of Section 3.5 are therefore applicable) only if the Special Committee of the Board of Directors of the Company (the "Special Committee") shall have determined that approval of such other proposal is necessary or advisable to carry into effect the purpose and intent of this Agreement. Further, each Voting Stockholder shall be obligated to vote against, and refrain from executing and delivering written consents in favor of, any proposal only if the Special Committee shall have determined that approval of such proposal is contrary to or inconsistent with any proposal in favor of which the Voting Stockholders are required to vote under Section 1.1. Any such determination by the Special Committee shall be final and binding upon the Company, the Voting Stockholders and their Proxies. 1.4 No Inconsistent Agreements. Each Voting Stockholder hereby covenants and agrees that such Voting Stockholder will not, at any time while this Agreement remains in effect, (a) enter into any voting agreement or voting trust with respect to any of the Shares, or (b), grant a proxy or give a power-of-attorney or make any other appointment with respect to any of the Shares, except as is and will be consistent with the agreement to vote, or execute and deliver written consents, under Section 1.1. Each Voting Stockholder also covenants and agrees that such Voting Stockholder will not, prior to the termination of this Agreement, take any action that could make any representation or warranty of such Voting Stockholder contained herein untrue or could constitute a breach of any covenant or agreement by such Voting Stockholder hereunder or could have the effect of preventing, disabling, hindering or delaying such Voting Stockholder, any other Voting Stockholder or the Company from performing their respective obligations under this Agreement. Article 2 Representations, Warranties, Covenants and Agreements of Voting Stockholders Each Stockholder, severally and not jointly, hereby represents, warrants, covenants and agrees as follows: 2.1 Authority Relative to Agreement. Such Voting Stockholder is duly organized, formed or created under the laws of the jurisdiction of its organization. Such Voting Stockholder has the power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. All necessary corporate or other entity action on behalf of such Voting Stockholder has been taken to authorize this Agreement to be entered into on behalf of and to be performed by such Voting Stockholder. This Agreement has been duly and validly executed and delivered on behalf of such Voting Stockholder and, assuming the power and authority of the Company with respect to, and the due authorization, execution and delivery by the Company of, this Agreement, constitutes a legal, valid and binding obligation of such Voting Stockholder, enforceable against such Voting Stockholder in accordance with its terms. 2.2 No Conflict. The execution and delivery of this Agreement or any instrument required by this Agreement to be executed and delivered by such Voting Stockholder do not, and the performance of this Agreement by such Voting Stockholder will not, (a) result in any breach of or constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Shares pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which such Voting Stockholder is a party or by which such Voting Stockholder is bound or to which any of the Shares owned of record and/or beneficially by such Voting Stockholder is or are subject or by which they are or any of them is affected, or under the applicable organizational documents of such Voting Stockholder or (b) conflict with or violate any law, regulation, rule, judgment, order, decree or award, in each case applicable to such Voting Stockholder or any Shares owned of record and/or beneficially by such Voting Stockholder. 2.3 No Consents. The execution and delivery by such Voting Stockholder of this Agreement or any instrument required by this Agreement to be executed and delivered by such Voting Stockholder does not, and the performance by such Voting Stockholder of this Agreement or any instrument required by this Agreement to be executed and delivered by such Voting Stockholder will not, require such Voting Stockholder to obtain any consent or waiver of any Person or the consent, approval, authorization or action by, license, waiver, qualification, order or permit of any federal, state or local government or any court, administrative or regulatory tribunal, agency, body, or commission or other governmental authority, domestic or foreign (a "Governmental Authority") required under any law, regulation, rule, judgment, order, decree or award, in each case applicable to such Voting Stockholder or any Shares owned of record and/or beneficially by such Voting Stockholder, observe any waiting period imposed by, or make any filing with or notification to, any Governmental Authority. 2.4 Title to the Shares. All Shares beneficially owned by such Voting Stockholder as of the date hereof are set forth opposite such Voting Stockholder's name under column I of Schedule A hereto and all Shares owned of record by each Voting Stockholder are set forth opposite such Voting Stockholder's name under column II of Schedule A hereto. All such Shares are owned free and clear of all Liens, options, rights of first refusal or first offer, and agreements other than this Agreement and as described in Section 3.02 of the Stock Purchase Agreement, including but not limited to any thereof limiting such Voting Stockholder's voting rights, and such Voting Stockholder has not granted any proxy or given any power-of-attorney or made any appointment which remains effective with respect to any of the Shares, other than the power-of-attorney given and the proxy granted under Section 1.2. Such Voting Stockholder has the sole power to vote all Shares set forth opposite such Voting Stockholder's name on Schedule A hereto, with no restrictions or limitations on such power, except as noted on Schedule A hereto. 2.5 Transferees of Shares. In the event that any Voting Stockholder intends to transfer ownership of any of the Shares owned of record and/or beneficially by such Voting Stockholder to a Person that is not then a Voting Stockholder, as a condition to the effectiveness of such transfer, such Voting Stockholder shall cause the transferee to agree, by executing and delivering to the Company a joinder agreement in form and substance satisfactory to the Special Committee, to become a party to this Agreement from and after the time such transfer is effected. The Company shall not be required to recognize the effectiveness of any transfer of Shares by a Voting Stockholder or a purported successor in interest to a Voting Stockholder which is not in compliance with the foregoing requirement. Article 3 Representations, Warranties, Covenants and Agreements of the Company The Company represents, warrants, covenants and agrees as follows: 3.1 Authority Relative to Agreement. The Company is duly organized under the laws of the State of Delaware. The Company has the power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. All necessary corporate action on behalf of the Company has been taken to authorize this Agreement to be entered into on behalf of and to be performed by the Company. This Agreement has been duly and validly executed and delivered on behalf of the Company and, assuming the power and authority of each Voting Stockholder with respect to, and the due authorization, execution and delivery by such Voting Stockholder of this Agreement, constitutes a legal, valid and binding obligation of the Company vis-a-vis such Voting Stockholder, enforceable against the Company in accordance with its terms. 3.2 No Conflict. The execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, (i) result in any breach of or constitute a default (or an event that, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the assets of the Company pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company is a party or by which the Company is bound or to which any of the assets of the Company is or are subject or by which they are or any of them is affected, or under the Current Certificate as will be amended by the Certificate of Designations or the bylaws of the Company or (ii) conflict with or violate any law, regulation, rule, judgment, order, decree or award, in each case applicable to the Company or any of its assets. 3.3 No Consents. The execution and delivery by the Company of this Agreement or any instrument required by this Agreement to be executed and delivered by the Company does not, and the performance by the Company of its obligations under this Agreement or any instrument required by this Agreement to be executed and delivered by the Company will not, require the Company to obtain any consent or waiver of any Person or the consent, approval, authorization or action by, license, waiver, qualification, order or permit of any Governmental Authority required under any law, regulation, rule, judgment, order, decree or award, in each case applicable to the Company or any of its assets, observe any waiting period imposed by, or make any filing with or notification to, any Governmental Authority, except any of the foregoing required under the DGCL, the Current Certificate as will be amended by the Certificate of Designations, the Company's bylaws and Section 14 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder. 3.4 The Meeting. The Company shall take all steps necessary, in accordance with the Current Certificate as will be amended by the Certificate of Designations and the Company's bylaws, the DGCL and Section 14(a) of the Exchange Act and the rules and regulations of the SEC promulgated thereunder, to call, set a record date for, give notice of, convene, hold and conduct a Meeting, to occur on or before July 31, 2001, at which (i) a proposal to adopt the Restated Certificate will be considered and acted upon, (ii) any proposal necessary to permit the Conversion to be effected and the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of such shares) to be authorized for quotation or listing on the NASDAQ Stock Market or any other national securities exchange on which the common stock of the Company is then quoted or listed and, (iii) subject to Section 1.3, for such other purposes as are necessary or advisable to carry into effect the purpose and intent of this Agreement and any other proper purposes for which such Meeting may be called. The Board and the Special Committee shall (a) take all steps necessary to determine the advisability of adopting the Restated Certificate and, if the provisions of Section 3.5 are applicable, the General Amendments, and to present to the stockholders of the Company (i) the proposal to adopt the Restated Certificate, (ii) any proposal necessary to permit the Conversion to be effected and the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of such shares) to be authorized for quotation or listing on the NASDAQ Stock Market or any other national securities exchange on which the common stock of the Company is then quoted or listed, (iii) any proposal to amend the Current Certificate as will be amended by the Certificate of Designations by adoption of an amendment thereto incorporating the General Amendments if the Restated Certificate is not adopted at the First Meeting and the provisions of Section 3.5 are therefore applicable and, (iv) subject to Section 1.3, any other proposal which is necessary or advisable to carry into effect the purpose and intent of this Agreement to be submitted to the stockholders of the Company at such Meeting for their consideration and action and (b) use all reasonable efforts to obtain the approving vote of the stockholders of the Company for (i) the adoption of the Restated Certificate, (ii) any proposal necessary to permit the Conversion to be effected and the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of such shares) to be authorized for quotation or listing on the NASDAQ Stock Market or any other national securities exchange on which the common stock of the Company is then quoted or listed, (iii) any proposal to amend the Current Certificate as will be amended by the Certificate of Designations by adoption of an amendment thereto incorporating the General Amendments if the Restated Certificate is not adopted at the First Meeting and the provisions of Section 3.5 are therefore applicable and, (iv) subject to Section 1.3, any other proposal the approval of which is necessary or advisable to carry into effect the purpose and intent of this Agreement. The Company represents and warrants that the Board and the Special Committee have determined that adoption of the Restated Certificate is advisable and in the best interest of the Company, have directed that a proposal to adopt the Restated Certificate be presented to the stockholders of the Company for their consideration and approval, and have recommended that the stockholders of the Company approve such a proposal. 3.5 Second Meeting; Adoption of General Amendments. In the event that at the First Meeting (i) a proposal to adopt the Restated Certificate is not approved, then after the Board shall have declared the General Amendments advisable, the Voting Stockholders shall as soon thereafter as practicable execute and deliver written consents to a proposal to adopt an amendment to the Current Certificate as will be amended by the Certificate of Designations incorporating the General Amendments. If the provisions of this Section 3.5 are so rendered applicable, if requested in writing by a Voting Stockholder, the Company shall within twelve months after the First Meeting take all of the action provided for in Section 3.4 with respect to a second Meeting (the "Second Meeting") and all of the other provisions of this Agreement, including but not limited to the obligations of the Voting Stockholders provided for in Section 1.1, shall continue to be applicable and in full force and effect in connection therewith and otherwise; provided that, in the event that at the Second Meeting any or all of (i) a proposal to adopt the Restated Certificate, (ii) any proposal necessary to permit the Conversion to be effected and the shares issued in the Conversion (and any shares of capital stock issuable upon conversion of such shares) to be authorized for quotation or listing on the NASDAQ Stock Market or any other national securities exchange on which the common stock of the Company is then quoted or listed which is presented at such Meeting and, (iii) subject to Section 1.3, any other proposal necessary or advisable to carry into effect the purpose and intent of this Agreement is not approved by the stockholders of the Company, including by the Class A Vote, then this Agreement shall thereupon terminate and be of no further force and effect; provided, further, that in any event the General Amendments, after having been adopted, shall remain in full force and effect. Article 4 Miscellaneous 4.1 Reasonable Efforts. The Company and each Voting Stockholder shall use all of its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with one another in doing, all things necessary, proper or advisable, in the most expeditious manner practicable, to enable the full and timely performance of this Agreement, including (a) seeking to obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Authorities, making all necessary registrations and filings and taking all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority, (b) the obtaining of all necessary consents, approvals or waivers from third parties, (c) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the validity, effectiveness or performance of this Agreement, including but not limited to the adoption or effectiveness of the Restated Certificate, including but not limited to seeking to have any stay, temporary restraining order or preliminary injunction entered by any Governmental Authority vacated or reversed, but not including the payment or reimbursement of any legal fees in connection with any such lawsuits or other proceedings other than the payment by each party of its own expenses, and (d) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to carry out the purpose and intent of, this Agreement. 4.2 Obligations of Voting Stockholders with Respect to Record Holders of Shares. Each Voting Stockholder hereby agrees that, with respect to any Shares owned beneficially by such Voting Stockholder but held of record by another Person, such Voting Stockholder shall, at the request of the Company or any other Voting Stockholder, cause any holder of record of such Shares to take any and all actions which the Company or such other Voting Stockholder deems necessary, proper and advisable to enable the full and timely performance of this Agreement, including but not limited to causing any record holder of such Shares to execute and deliver a proxy or power-of-attorney to effect the provisions of this Section 4.2. 4.3 Termination. This Agreement shall terminate upon the earliest to occur of (a) the mutual written agreement of all Voting Stockholders and the Company, (b) the termination of the Stock Purchase Agreement in accordance with its terms prior to the issuance and sale of Shares pursuant thereto or (c) a termination of this Agreement pursuant to the last sentence of Section 3.5 occurs. 4.4 Enforcement of Agreement. The parties hereto agree that immediate, substantial and irreparable harm for which monetary damages will be inadequate will occur in the event that any of the provisions of this Agreement are not performed in accordance with its terms by another party hereto or this Agreement is otherwise breached by another party hereto. Accordingly, it is agreed that each of the parties hereto will be entitled, in addition to any other remedy to which such party is entitled at law or in equity, to (a) an injunction or injunctions to prevent breaches or continuing breaches of this Agreement by any other party or parties hereto and (b) an order of specific performance of the provisions hereof. 4.5 Successors and Affiliates. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto, their Affiliates and the legal representatives, successors and permitted assigns of the parties hereto and their Affiliates. If any Voting Stockholder shall at any time hereafter acquire ownership of, or voting power with respect to, any additional Shares in any manner, whether by the exercise of any options, warrants or other rights, by operation of law or otherwise, such Shares shall be held subject to all of the provisions of this Agreement. Without limiting the foregoing, each Voting Stockholder specifically acknowledges and agrees that the obligations of such Voting Stockholder hereunder shall not be terminated by operation of law. 4.6 Entire Agreement; Condition to Effectiveness. This Agreement, together with the Stock Purchase Agreement and the Current Certificate as will be amended by the Certificate of Designations, constitutes the entire agreement among the Company and the Voting Stockholders with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, both written and oral, among the Company and the Voting Stockholders with respect to the subject matter hereof, other than the Stock Purchase Agreement and the Current Certificate as will be amended by the Certificate of Designations. This Agreement shall not take effect unless and until the Stock Purchase Agreement shall have been executed and delivered by the Company and by each of the Voting Stockholders and shall have taken effect. 4.7 Captions and Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument. 4.8 Amendment. This Agreement may not be amended except by an instrument in writing signed by all of the parties hereto. 4.9 Waivers. Except as provided in this Agreement, no action taken pursuant to this Agreement, including but not limited to any investigation by or on behalf of any party, shall be deemed to constitute a waiver of compliance with any representations, warranties, covenants or agreements contained in this Agreement by the party taking such action. The waiver by any party hereto of a breach of any provision hereunder shall not operate or be construed as a wavier of any prior or subsequent breach of the same or any other provision hereunder. 4.10 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in a mutually acceptable manner in order that the purpose and intent of this Agreement will be carried into effect to the fullest extent possible. 4.11 Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the Company at its address below and any other receiving party's address as set forth on Schedule A hereto, or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid. If to the Company: America Online Latin America, Inc. 6600 N. Andrews Avenue Suite 500 Ft. Lauderdale, FL 33309 Attn: Chief Executive Officer Fax: (954) 233-1801 With a copy (which shall not constitute notice) to: America Online Latin America, Inc. 6600 N. Andrews Avenue Suite 500 Ft. Lauderdale, FL 33309 Attn: General Counsel Fax: (954) 233-1801 All notices, requests, consents and other communications hereunder shall be deemed to have been given (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such part set forth above, (ii) if made by telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next Business Day (or if sent overseas, on the second Business Day) following the day such notice is delivered to the courier service, or (iv) if sent by registered or certified mail, on the date delivery is made at the address of such party set forth above. 4.12 Governing Law. This Agreement shall be governed by, and construed in accordance with, Delaware law, regardless of any law that might otherwise govern under applicable principles of conflicts of law. State courts within the State of Delaware and, more particularly to the fullest extent such court shall have subject matter jurisdiction over the matter, the Court of Chancery of the State of Delaware shall have exclusive jurisdiction over any and all disputes between the parties hereto, whether in law or equity, arising out of or relating to this Agreement and the agreements, instruments and documents contemplated hereby. The parties consent to and agree to submit to the jurisdiction of such courts. Each of the parties hereby waives, and agrees not to assert in any such dispute, to the fullest extent permitted by applicable Delaware law, or any other applicable law, any claim that (a) such party is not personally subject to the jurisdiction of such courts, (b) such party and such party's property is immune from any legal process issued by such courts or (c) any litigation commenced in such courts is brought in an improper or inconvenient forum. Each of the parties hereto agrees that service of process may be made on such party in the manner provided in Section 4.10 or in any other manner permitted by Delaware law, or any other applicable law, anywhere in the world, and that such service shall constitute valid and sufficient service of process on such party. 4.13 Several Obligations of Voting Stockholders. The obligations of the Voting Stockholders hereunder shall be "several" and not "joint" or "joint and several." Without limiting the generality of the foregoing, under no circumstances shall any Voting Stockholder have any liability or obligation with respect to any misrepresentation or breach of covenant or agreement of any other Voting Stockholder. 4.14 Officers and Directors. Notwithstanding anything in this Agreement to the contrary, the covenants and agreements set forth herein shall not be deemed to prevent any employee, officer, director or representative of any Voting Stockholder or the Company from taking any action or refraining from taking any action in the exercise of his or her fiduciary duty as an employee, officer or director of the Company, provided that any action or failure to act by such Person which, if taken by such Voting Stockholder or by the Company, as the case may be, would constitute a breach of this Agreement if committed by such Voting Stockholder or by the Company, as the case may be, shall be deemed a breach of this Agreement by such Voting Stockholder or the Company, as the case may be, whether or not such action or inaction is in accordance with such fiduciary duty. 4.15 Interpretation. The parties have participated jointly in the negotiation of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of the provisions of this Agreement. 4.16 Waiver of Jury Trial. Each party hereto hereby waives any right to have a jury participate in resolving any dispute arising out of, or in connection with, related to, or incidental to this Agreement, the calling or holding of a Meeting to consider and act upon a proposal which is the subject of the agreement to vote, or execute and deliver written consents, under Section 1.1 or the conduct of any such Meeting insofar as relates to the subject matter of the agreement to vote, or execute and deliver written consents, under Section 1.1. AMERICA ONLINE LATIN AMERICA, INC. By: Name: Title: AMERICA ONLINE, INC. By: Name: Title: RIVERVIEW MEDIA CORP. By: Name: Title: ASPEN INVESTMENTS LLC By: Name: Title: ATLANTIS INVESTMENTS LLC By: Name: Title: Schedule A Voting Stockholders I II Name and Address (Beneficially Owned) (Owned of Record) - ---------------- -------------------- ----------------- America Online, Inc. 101,858,334* 101,858,334* 22000 AOL Way Series B Stock Series B Stock Dulles, VA 20166-9323, USA Attn: President, AOL International 14,152,123 14,152,123 Telecopier: (703) 265-2502 Series D Stock Series D Stock With a copy (which shall not constitute notice) to: 4,000,000 4,000,000 Class A Stock Class A Stock America Online, Inc. 22000 AOL Way Dulles, VA 20166-9323-USA Attn: General Counsel Telecopier: (703) 265-3992 Riverview Media Corp. 97,298,406 c/o Finser Corporation Series C Stock 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 4,000,000 Attn: General Counsel Class A Stock Telecopier: (305) 447-1389 With a copy (which shall not constitute notice) to: Milbank, Tweed, Hadley and McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Attn: Guilford Gaylord, Esq. Telecopier: (212) 530-5219 Aspen Investments LLC 48,865,869 6,805,019 c/o Finser Corporation Series C Stock Series E Stock 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 6,805,019 Attn: General Counsel Series E Stock Telecopier: (305) 447-1389: 2,000,000 With a copy (which shall not constitute notice) to: Class A Stock Milbank, Tweed, Hadley and McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Attn: Guilford Gaylord, Esq. Telecopier: (212) 530-5219 Atlantis Investment LLC 48,938,091 6,805,018 c/o Finser Corporation Series C Stock Series E Stock 550 Biltmore Way, Suite 900 Coral Gables, FL 33134 6,805,018 Attn: General Counsel Series E Stock Telecopier: (305) 447-1389 2,000,000 With a copy (which shall not constitute notice) to: Class A Stock Milbank, Tweed, Hadley and McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Attn: Guilford Gaylord, Esq. Telecopier: (212) 530-5219
* Does not include 16,541,250 shares of Class A Stock, Class B Common Stock, $.01 par value per share, or Series B Stock purchasable upon the full exercise of a warrant therefor. -----END PRIVACY-ENHANCED MESSAGE-----