-----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, WusF7pBfG9YQMNG/xPmvvyYhQD2kSBHKnpZh89So6rTVOGJC2CiMt9h99+31z1GW EILJZzZRQNBwBngM8W3HMw== 0001105705-02-000023.txt : 20020415 0001105705-02-000023.hdr.sgml : 20020415 ACCESSION NUMBER: 0001105705-02-000023 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020405 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: 1934 Act SEC FILE NUMBER: 005-59485 FILM NUMBER: 02603176 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 FISCAL YEAR END: 1231 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 d13aollatinamerica.txt 13D/A AMERICA ONLINE LATIN AMERICA, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A 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. 4) 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: Peter S. Malloy, Esq. Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 (212) 455-2000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 8, 2002 - -------------------------------------------------------------------------------- (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 which is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box |_|. - --------- ---------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): AOL Time Warner Inc. 13-4099534 - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x] (b) [ ] - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 3 SEC USE ONLY: - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 4 SOURCE OF FUNDS: WC - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - --------- ---------------------------------------------------------------------- - -------------------- ---------- ------------------------------------------------ NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING 4,773,730 (1) PERSON WITH ---------- ------------------------------------------------ ---------- ------------------------------------------------ 8 SHARED VOTING POWER 136,551,706 (2) ---------- ------------------------------------------------ ---------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 4,773,730 ---------- ------------------------------------------------ ---------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 136,791,706 (3) - -------------------- ---------- ------------------------------------------------ - --------- ---------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 141,565,436 - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [x] - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 69.2% (4) - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: HC, CO - --------- ---------------------------------------------------------------------- - -------------------------------- 1 Represents the number of shares of Class A Common Stock, par value $0.01 per share ("Class A Common Stock"), of America Online Latin America, Inc. ("AOL-LA") into which (ultimately) the $17,300,000 11% senior convertible notes owned by AOL Time Warner Inc. ("AOL Time Warner"), are immediately convertible at an initial conversion price of $3.624. 2 Calculated pursuant to Rule 13d-3, includes (i) 4,000,000 shares of Class A Common Stock owned by America Online, Inc. ("AOL"), (ii) 116,010,456 shares of Class A Common Stock into which (ultimately) 116,010,456 shares of Series B Redeemable Convertible Preferred Stock owned by AOL are immediately convertible on a one for one basis and (iii) 16,541,250 shares of Class A Common Stock issuable upon exercise of AOL's immediately exercisable warrant. 3 Calculated pursuant to Rule 13d-3, includes the 136,551,706 shares described in number 8 above plus (i) 240,000 shares of Class A Common Stock issuable upon exercise of certain employee options issued by AOL-LA. 4 For purposes of beneficial ownership calculation under Rule 13d-3, the number of outstanding shares includes: (i) the 67,057,124 shares of Class A Common Stock outstanding (including 4,000,000 shares of Class A Common Stock owned by AOL) as of March 25, 2002 as reported in AOL-LA's Annual Report on Form 10-K filed by AOL-LA on April 1, 2002, (ii) 116,010,456 shares of Class A Common Stock into which (ultimately) 116,010,456 shares of Series B Redeemable Convertible Preferred Stock owned by AOL are immediately convertible on a one for one basis, (iii)16,541,250 shares of Class A Common Stock issuable upon exercise of AOL's immediately exercisable warrant, (iv) 240,000 shares of Class A Common Stock issuable upon exercise of certain AOL-LA employee option shares and (v) 4,773,730 shares of Class A Common Stock issuable upon conversion of AOL Time Warner's $17,300,000 11% senior convertible notes. - --------- ---------------------------------------------------------------------- 1 NAME OF REPORTING PERSON 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: Not Applicable - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 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 - --------- ---------------------------------------------------------------------- - -------------------- -------- -------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING 0 PERSON WITH -------- -------------------------------------------------- -------- -------------------------------------------------- 8 SHARED VOTING POWER 136,551,706 (1) -------- -------------------------------------------------- -------- -------------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 -------- -------------------------------------------------- -------- -------------------------------------------------- 10 SHARED DISPOSITIVE POWER 136,791,706 (2) - -------------------- -------- -------------------------------------------------- - --------- ---------------------------------------------------------------------- 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 ] - --------- ---------------------------------------------------------------------- - ------------------------- 1. Calculated pursuant to Rule 13d-3, includes (i) 4,000,000 shares of Class A Common Stock owned by AOL, (ii) 116,010,456 shares of Class A Common Stock in which (ultimately) 116,010,456 shares of Series B Redeemable Convertible Preferred Stock owned by AOL are immediately convertible on a one for one basis and (iii) 16,541,250 shares of Class A Common Stock issuable upon exercise of AOL's immediately exercisable warrant. 2. Calculated pursuant to Rule 13d-3, includes the 136,551,706 shares described in number 8 above plus (i) 240,000 shares of Class A Common Stock issuable upon exercise of certain AOL-LA employee options. - --------- ---------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 68.4%(3) - --------- ---------------------------------------------------------------------- - --------- ---------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: CO - --------- ---------------------------------------------------------------------- - ------------------------------------ 3. For purposes of beneficial ownership calculation under Rule 13d-3, the number of outstanding shares includes: (i) the 67,057,124 shares of Class A Common Stock outstanding (including 4,000,0000 shares of Class A Common Stock owned by AOL), (ii) 116,010,456 shares of Class A Common Stock into which (ultimately)116,010,456 shares of Series B Redeemable Convertible Preferred Stock owned by AOL are immediately convertible on a one for one basis, (iii) 16,541,250 shares of Class A Common Stock issuable (ultimately) upon exercise of AOL's immediately exercisable warrant and (iv) 240,000 shares of Class A Common Stock issuable upon exercise of certain AOL-LA employee option shares. 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. 4 ("Amendment No. 4") to amend and supplement the statement on Schedule 13D originally filed on August 22, 2000 and amended on January 22, 2001 and February 27, 2001 and further amended and restated in its entirety on April 13, 2001 (as previously so amended and restated, 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 13 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. Unless otherwise expressly set forth herein, capitalized terms not defined in this Amendment No. 4 have the meanings given to such terms in the Statement. Item 1. Security and Issuer This Amendment No. 4 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 Item 2 of the Statement is hereby amended and restated to read in its entirety as follows: This Amendment No. 4 is being filed by AOL Time Warner, a Delaware corporation having its principal executive offices at 75 Rockefeller Plaza, New York, New York 10019, and AOL, a Delaware corporation having its principal executive offices at 22000 AOL Way, Dulles, Virginia 20166. The Reporting Persons may be deemed members of a "group" (as such term is defined pursuant to Regulation 13D under the Exchange Act) that may be 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 Amendment No. 4 or the 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. 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 Amendment No. 4. 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 world's first fully integrated, Internet-powered media and communications company. It classifies its business interests into the following fundamental areas: AOL, cable, filmed entertainment, networks, music and publishing. Substantially all of AOL Time Warner's interests in filmed entertainment and cable and a portion of its interests in 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 interactive services, Web properties, Internet technologies and electronic commerce services. 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 Amendment No. 4, 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 of AOL-LA. Item 3. Source and Amount of Funds or Other Consideration Item 3 of the Statement is hereby amended by adding the following as the last paragraphs thereof: On June 1, 2001, AOL purchased additional shares of Series D Redeemable Convertible Preferred Stock, $0.01 par value per share (the "Series D Preferred Stock"), and on August 1, 2001, AOL purchased shares of Series B Preferred Stock, in each case pursuant to the Stock Purchase Agreement described in Items 4 and 6 of the Statement using funds from AOL's working capital. As further described in Item 6, the shares of Series D Preferred Stock held by AOL automatically converted into an equivalent number of shares of Series B Preferred Stock on July 31, 2001, without the use of any additional funds from AOL. On March 11, 2002, AOL Time Warner purchased at par value $17,300,000 aggregate principal amount of AOL-LA's 11% Senior Convertible Notes due 2007, pursuant to a Note Purchase Agreement described in Items 4 and 6 of this Amendment No. 4, using funds from AOL Time Warner's working capital. Item 4. Purpose of Transaction Item 4 of the Statement is hereby amended by deleting the last four paragraphs thereof and adding the following in lieu thereof: The information set forth or incorporated by reference in Items 2, 3, 5, 6 and 7 is hereby incorporated by reference. AOL Time Warner has entered into a Note Purchase Agreement with AOL-LA, dated as of March 8, 2002 (the "Note Purchase Agreement"), for the purchase by AOL Time Warner (and/or its permitted assigns) of up to $160,000,000 aggregate principal amount of AOL-LA's 11% Senior Convertible Notes due 2007 (the "Initial Notes"). On March 11, 2002, AOL Time Warner purchased an initial tranche of $17,300,000 aggregate principal amount of the Initial Notes from AOL-LA (the "First Tranche Notes"). As further described in Item 6, the Initial Notes are convertible into capital stock of AOL-LA, and ultimately convertible into shares of Class A Common Stock of AOL-LA at the conversion price of $3.624 per share, subject to adjustment in accordance with their terms for certain dilutive transactions, stock splits and other similar events. As further described in Item 6, AOL-LA will pay interest on the Initial Notes issued pursuant to the Note Purchase Agreement quarterly in arrears. Such interest will be paid, at AOL-LA's option, subject to certain limitations, (i) in cash or (ii) through the issuance of either Applicable Shares (as defined in Item 6) of AOL-LA capital stock or additional 11% senior convertible notes (each, a "PIK Note" and collectively, the "PIK Notes") (together with the Initial Notes, each a "Note" and collectively, the "Notes"). Interest on any PIK Notes issued shall be payable in cash or Applicable Shares or shall be added to the principal of such PIK Notes as further described in Item 6 of this Statement. AOL Time Warner's purchase of Initial Notes is part of a broader investment history with AOL-LA that included the Reorganization, AOL's purchase on August 11, 2000 of 4,000,000 shares of Class A Common Stock in the Offering and AOL's purchases of additional preferred stock of AOL-LA under the Stock Purchase Agreement in 2001. The Reporting Persons' investments in AOL-LA are expected to increase as a result of additional purchases by AOL Time Warner (or its permitted assigns) of Initial Notes pursuant to the Note Purchase Agreement, the payment from time to time of interest on the Initial Notes in the form of PIK Notes or shares of AOL-LA capital stock and the payment from time to time of dividends on preferred stock held by the Reporting Persons in the form of additional shares of capital stock. See Item 6. In connection with the Note Purchase Agreement, AOL, ODC, AOL-LA and AOL Time Warner entered into a Second Amended and Restated Stockholders Agreement, dated as of March 8, 2002 (the "Second Amended and Restated Stockholders Agreement"), which amended the existing Stockholders Agreement in order to, among other things, (a) add AOL Time Warner as a party for certain limited purposes, including (i) to agree to vote all of the shares of AOL-LA capital stock held by AOL Time Warner to elect the four directors nominated by the Special Committee for election by the holders of all shares of AOL-LA's outstanding capital stock, voting together, and (ii) to agree to certain restrictions on AOL Time Warner's ability to transfer equity securities of AOL-LA and (b) to provide that, in the event that shares of Series F Redeemable Convertible Preferred Stock, par value $0.01 per share, of AOL-LA (the "Series F Preferred Stock") or Series B Preferred Stock are held by an entity other than AOL Time Warner or a wholly-owned affiliate of AOL Time Warner or shares of Series C Preferred Stock are held by an entity other than ODC or a wholly-owned affiliate of ODC, Gustavo A. Cisneros, Ricardo J. Cisneros and/or their lineal descendents and/or any trusts for the benefit of such persons, then all shares transferred to or held by such entity are required to be converted from Series F Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, as applicable, into that number of shares of Class B Common Stock (together with Series B Preferred Stock, "B Stock") or Class C Common Stock (together with Series C Preferred Stock, "C Stock"), as applicable, into which such shares are then convertible, and any shares of Class B Common Stock or Class C Common Stock held by such entity (including such shares of Class B Common Stock and Class C Common Stock issued upon conversion of Series F Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, as applicable) are required to be converted into that number of shares of Class A Common Stock into which such shares are then convertible. Also in connection with the Note Purchase Agreement, AOL Time Warner, AOL, ODC and AOL-LA entered into a Second Amended and Restated AOL-ODC Registration Rights Agreement (described in Item 6), and AOL Time Warner entered into certain Voting Agreements (described in Item 6) with ODC and with certain of the Banco Itau Reporting Persons. The Reporting Persons intend to review their investment in AOL-LA on a continuing basis and, subject to the limitations set forth in the Second Amended and Restated Stockholders' Agreement, reserve the right to (i) acquire additional securities of and increase their level of investment and control in AOL-LA, through acquisitions in the open market or in privately negotiated transactions with AOL-LA or third parties or otherwise, (ii) maintain their holdings at current levels or (iii) 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 the board of directors or management of AOL-LA regarding the foregoing. Except as set forth elsewhere in this Amendment No. 4, neither 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 Second Amended and Restated Stockholders' Agreement, the Note Purchase Agreement, the Initial Notes, the PIK Notes, the Second Amended and Restated AOL-ODC Registration Rights Agreement, and the Voting Agreements are qualified in their entirety by reference to the copies of such documents included as exhibits to this Amendment No. 4, and are incorporated in this Item 4 in their entirety where such references and descriptions appear. Item 5. Interest in Securities of the Issuer Item 5 of the Statement is hereby amended and restated to read in its entirety as follows: The information set forth or incorporated by reference in Items 2, 3, 4, 6 and 7 is hereby incorporated herein by reference. As of March 25, 2002, as reported in AOL-LA's Annual Report on Form 10-K filed by AOL-LA on April 1, 2002, there were 67,057,124 shares of Class A Common Stock outstanding. No shares of AOL-LA's Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Class B Common Stock or Class C Common Stock were outstanding. For purposes of Rule 13d-3 under the Exchange Act, the Class A Common Stock issuable, directly or indirectly, upon conversion of the Series B Preferred Stock currently held by AOL, upon exercise of the AOL Warrant, and upon exercise by the Employees (defined below) of their options, (i) with respect to percentage ownership calculations made herein for AOL, increase the number of Class A Common Stock outstanding to 199,848,830(1) and (ii) together with the 4,773,730 shares of Class A Common Stock issuable, directly or indirectly, upon conversion of the First Tranche Notes, with respect to percentage ownership calculations made herein for AOL Time Warner, increase the diluted number of Class A Common Stock outstanding to 204,622,560. As of the date hereof, the Reporting Persons (i) beneficially own 4,000,000 shares of Class A Common Stock held by AOL and (ii) pursuant to Rule 13d-3(a) promulgated under the Exchange Act, may be deemed to beneficially own an additional 132,551,706 shares of Class A Common Stock, which are issuable upon conversion, directly or indirectly, of all of the shares of Series B Preferred Stock held by AOL and upon exercise of the AOL Warrant. Shares of Series B 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. - ---------------------------- 1. Includes (i) the 67,057,124 shares of Class A Common Stock outstanding (including 4,000,000 shares of Class A Common Stock owned by AOL), (ii) 116,010,456 shares of Class A Common Stock into which (ultimately) 116,010,456 shares of Series B Redeemable Convertible Preferred Stock owned by AOL are immediately convertible on a one for one basis, (iii) 16,541,250 shares of Class A Common Stock issuable upon exercise of AOL's immediately exercisable warrant and (iv) 240,000 shares of Class A Common Stock issuable upon exercise of certain AOL-LA employee option shares. Pursuant to Rule 13d-3(a) promulgated under the Exchange Act, the Reporting Persons may also 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 AOL-LA's initial public offering, Michael Lynton, J. Michael Kelly, and Gerald Sokol, Jr., employees of AOL, and Robert W. Pittman, currently an employee of AOL Time Warner and formerly an employee of AOL, who are each also members of the Board (each an "Employee" and collectively, 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 Time Warner or AOL, as applicable. 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 Amendment No. 4, 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. Pursuant to Rule 13d-3(a) promulgated under the Exchange Act, AOL Time Warner may also be deemed to beneficially own an additional 4,773,730 shares of Class A Common Stock, which are issuable upon conversion, directly or indirectly, of the First Tranche Notes at the conversion price of $3.624 per share, as the same may be adjusted in accordance with the terms of the Initial Notes. As further described in Item 6, the Initial Notes are convertible at any time into Applicable Shares (as defined in Item 6), which may be shares of Series F Preferred Stock, Series B Preferred Stock, or Class A Common Stock, in any case at a conversion price of $3.624 per share. Shares of Series F 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. AOL and AOL Time Warner have shared power to vote and dispose of 4,000,000 shares of Class A Common Stock held by AOL, the 116,010,456 shares of Class A Common Stock issuable upon conversion, directly or indirectly, of all of the Series B Preferred Stock held by AOL, and 16,541,250 shares of Class A Common Stock issuable upon exercise of the AOL Warrant. AOL and AOL Time Warner share the power to dispose of the 240,000 shares of Class A Common Stock issuable upon exercise of the stock options that were granted to the Employees. AOL Time Warner has sole power to vote and dispose of the 4,773,730 shares of Class A Common Stock that are issuable upon conversion, directly or indirectly, of the First Tranche Notes acquired by AOL Time Warner on March 11, 2002 pursuant to the Note Purchase Agreement. Consequently, under Rule 13d-3(a), upon conversion of the B Stock held by AOL, the exercise of the AOL Warrant and the exercise of the stock options granted to the Employees, AOL would beneficially own 136,791,706 shares of Class A Common Stock in the aggregate, or approximately 68.4% of the shares of Class A Common Stock currently outstanding. Upon conversion of the B Stock held by AOL, the exercise of the AOL Warrant, the exercise of the stock options granted to the Employees, and the conversion of the First Tranche Notes, AOL Time Warner would beneficially own 141,565,436 shares of Class A Common Stock in the aggregate, or approximately 69.2% of the shares of Class A Common Stock currently outstanding. However, assuming (i) the conversion of all B Stock and C Stock, (ii) the conversion of all of the First Tranche Notes and (iii) the exercise and conversion of all outstanding warrants and stock options, AOL and AOL Time Warner would beneficially own approximately 43.3% and 44.8%, respectively, of the 316,216,554 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 Second Amended and Restated Stockholders' Agreement, the ODC Voting Agreement, and the Second Amended and Restated AOL-ODC Registration Rights Agreement (each 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, 111,413,994 shares of Series C Preferred Stock, which represents all of such Series C Preferred Stock outstanding, and currently exercisable options to purchase 120,000 shares of Class A Common Stock. Shares of Series C 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 36.5% of the 316,216,554 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 conversion of all of the First Tranche Notes purchased by AOL Time Warner on March 11, 2002, 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 and the Itau Voting Agreement (as defined in Item 6), 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, the President and Chief Executive Officer of Banco Itau), or approximately 11.4% of the 316,216,554 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 conversion of all of the Initial Notes purchased by AOL Time Warner on March 11, 2002, 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 Amendment 4, 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 Second Amended and Restated Stockholders' Agreement, the Note Purchase Agreement, the Voting Agreements, and the Second Amended and Restated AOL-ODC Registration Rights Agreement are qualified in their entirety by reference to the copies of such documents included as exhibits to this Amendment No. 4, and are incorporated in this Item 5 in their entirety where such references and descriptions appear. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer Item 6 of the Statement is hereby amended by deleting the last three paragraphs thereof and adding the following in lieu thereof: Pursuant to the Note Purchase Agreement, AOL Time Warner has agreed to purchase an aggregate principal amount of up to $160,000,000 of Initial Notes. Subject to certain conditions set forth in the Note Purchase Agreement, including the delivery by AOL-LA of a funding notice in respect of any subsequent tranche, the Initial Notes will be issued in a series of tranches from time to time in an aggregate amount not to exceed the aggregate principal amount for the applicable funding period set forth in the table below and in the Note Purchase Agreement (each such period, a "Funding Period"). On March 11, 2002, AOL Time Warner purchased an initial tranche of $17,300,000 aggregate principal amount of Initial Notes, which are all of the Initial Notes that AOL-LA may issue through March 31, 2002, the end of the first Funding Period. In accordance with the terms set forth in the Note Purchase Agreement attached hereto as Exhibit 1: (i) no Initial Notes will be issued and AOL Time Warner or its assigns will have no obligation to purchase any Initial Notes after December 31, 2002, (ii) there will be no more than one tranche of Initial Notes issued in any one calendar month, (iii) each subsequent tranche of Initial Notes will consist of no less than $10,000,000 principal amount of Initial Notes, and (iv) at no time will the aggregate principal amount of Initial Notes issued as of March 11, 2002 and thereafter exceed the maximum aggregate principal amount specified in the following table for the applicable Funding Period (as reduced on a dollar-for-dollar basis by the amount of all net cash proceeds received by AOL-LA or its subsidiaries from certain financings or asset sales in excess of certain thresholds): SUBSEQUENT TRANCHES - -------------------------------------------------------------------------------- Maximum Aggregate Principal Amount of Initial Notes To Be Funding Period Issued - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- First Closing to and including March 31, 2002 $17,300,000 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- On and after April 1, 2002 to and including $86,800,000 June 30, 2002 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- On and after July 1, 2002 to and including $124,900,000 September 30, 2002 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- On and after October 1, 2002 to and including $160,000,000 December 31, 2002 - -------------------------------------------------------------------------------- Commencing on June 30, 2002, AOL-LA will pay interest on the Initial Notes issued pursuant to the Note Purchase Agreement quarterly in arrears on each March 31, June 30, September 30 and December 31 of each calendar year and on the final maturity date (each an "Interest Payment Date") to the holder of record on the date which is 15 days before the applicable Interest Payment Date. Any interest payable on the Initial Notes will be paid on each Interest Payment Date, at AOL-LA's option: (i) in cash or (ii) subject to the next succeeding sentence, either (x) through the issuance of PIK Notes or (y) through the issuance of Applicable Shares having an aggregate Fair Market Value (as defined in the Initial Notes) on such Interest Payment Date equal to the amount of interest payable on the Initial Notes on such Interest Payment Date. AOL-LA's ability to pay interest on the Initial Notes through the issuance of PIK Notes or Applicable Shares (defined below) will be subject to certain conditions set forth in the Notes, including, with respect to payment of interest in the form of Applicable Shares, the making of all required filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR Act"), and the expiration or termination of any required waiting period thereunder, in each case with respect to the receipt of Applicable Shares by the holder of the Notes (the "Required HSR Approval"). Subject to and upon compliance with certain terms set forth therein, the Initial Notes are convertible at any time and from time to time, in whole or in part, at AOL Time Warner's (or any other permitted holders') option, into duly authorized, validly issued, fully paid and nonassessable Applicable Shares. The term "Applicable Shares" means (i) prior to the occurrence of a Class B Triggering Event (as defined in the Restated Certificate of Incorporation of AOL-LA), if AOL Time Warner or any AOLTW Affiliated Holder is the holder of the Notes, (A) Series F Preferred Stock, prior to the automatic conversion of Series F Preferred Stock into Series B Preferred Stock pursuant to the Certificate of Designation (defined below), and (B) Series B Preferred Stock, after the automatic conversion of Series F Preferred Stock into Series B Preferred Stock pursuant to the Certificate of Designation, and (ii) after the occurrence of a Class B Triggering Event, or if any Person other than AOL Time Warner or an AOLTW Affiliated Holder is the holder of the Notes, Class A Common Stock. "AOLTW Affiliated Holder" means each entity directly or indirectly wholly-owned by AOL Time Warner and, as of any date, each then current employee of AOL Time Warner or of any entity directly or indirectly wholly-owned by AOL Time Warner. On March 11, 2002, AOL-LA filed the certificate of designation with respect to the Series F Preferred Stock (the "Certificate of Designation") with the Secretary of State of the State of Delaware, as authorized in the Restated Certificate of Incorporation of AOL-LA. Any outstanding shares of Series F Preferred Stock shall be automatically converted into an equal number of shares of Series B Preferred Stock upon the approval by AOL-LA's shareholders and the subsequent filing by AOL-LA of a certificate of amendment to the Restated Certificate of Incorporation of AOL-LA in the form attached as an exhibit to the Note Purchase Agreement to, among other things, increase the number of authorized shares and adjust the liquidation preferences of the Series B Preferred Stock. Holders of Series F Preferred Stock are entitled to one vote per share and holders of Series B Preferred Stock are entitled to 10 votes per share. Each Initial Note is convertible into Applicable Shares based upon a conversion price of $3.624 per Applicable Share, subject to adjustment upon the occurrence of certain events specified in the Initial Notes. Initial Notes are convertible at the then effective conversion rate, determined by dividing (i) the portion of the face amount of the Initial Note outstanding on such date proposed to be converted into Applicable Shares, plus any accrued and unpaid interest on the face amount of the Initial Note proposed to be converted into Applicable Shares, by (ii) the then effective conversion price. Each PIK Note will be convertible into Applicable Shares based upon a conversion price per Applicable Share equal to the Fair Market Value of such Applicable Share at the time of issuance of such PIK Note, subject to adjustment upon the occurrence of certain events specified in such PIK Note. PIK Notes will be convertible at the then effective conversion rate, determined by dividing (i) the portion of the face amount of the PIK Note outstanding on such date proposed to be converted into Applicable Shares, plus any accrued and unpaid interest on such portion of the face amount of the PIK Note by (ii) the then effective conversion price. AOL-LA will pay interest on each issued PIK Note quarterly in arrears on each Interest Payment Date, at AOL-LA's option: (i) in cash, (B) subject to the next succeeding sentence, through the issuance of Applicable Shares having an aggregate Fair Market Value (as defined in the PIK Notes) on such Interest Payment Date equal to the amount of interest payable on the PIK Notes on such Interest Payment Date or (C) prior to obtaining the Required HSR Approval, by adding an amount equal to the interest payable on such Interest Payment Date to the then aggregate face amount outstanding on such PIK Note on such Interest Payment Date. AOL-LA's ability to pay interest on the PIK Notes through the issuance of Applicable Shares will be subject to certain conditions set forth in the PIK Notes, including the receipt of the Required HSR Approval. At any time on or after the date which is eighteen months after March 11, 2002, AOL-LA may, at its option, but subject to AOL Time Warner's right to convert the Notes into Applicable Shares, redeem all or a portion of the Notes at a price equal to the face amount thereof, plus accrued but unpaid interest on such redeemed portion of the Notes (the "Redemption Price"). If AOL-LA or any of its Subsidiaries receives net proceeds from certain financings or asset sales specified in the Notes in excess of certain thresholds, AOL-LA must use such net cash proceeds received from such financing or asset sale to redeem the Notes at the Redemption Price. AOL-LA must comply with various affirmative and negative covenants contained in the Notes, including, among others, limitations on the ability of AOL-LA and its subsidiaries to (i) incur debt, (ii) create, incur, assume or permit to exist liens on their property, (iii) make investments, (iv) consolidate or merge with other individuals or entities, (v) sell or otherwise dispose of its assets, (vi) enter into affiliate transactions, (vii) make dividends or other distributions with respect to any shares of their capital stock, or payments on account of the purchase, redemption, retirement, acquisition, cancellation or termination of such shares of capital stock, and (viii) make dispositions of their property, rights or other assets. In connection with the Note Purchase Agreement, the Reporting Persons entered into a voting agreement, dated as of March 8, 2002 with ODC (the "ODC Voting Agreement") and a voting agreement, dated as of March 8, 2002 with Banco Itau, Banco Banerj, Banco Itau -Cayman and Itau Bank Limited (the "Itau Voting Agreement" and, together with the ODC Voting Agreement, the "Voting Agreements"), pursuant to each of which the parties thereto, subject to certain conditions, 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 stockholders, including a proposal to amend the Restated Certificate of Incorporation of AOL-LA in order to change the liquidation preference of the Series B Preferred Stock. Upon approval of these proposals by the stockholders and the subsequent amendment of the Restated Certificate of Incorporation of AOL-LA, all authorized outstanding shares of Series F Preferred Stock will automatically convert into shares of Series B Preferred Stock. The Second Amended and Restated Stockholders Agreement, dated as of March 8, 2002, among AOL, ODC and AOL-LA and, for limited purposes, AOL Time Warner (the "Second Amended and Restated Stockholders Agreement"), amended the existing Stockholders Agreement in order to, among other things, (a) add AOL Time Warner as a party for certain limited purposes, including (i) to agree to vote all of the shares of AOL-LA capital stock held by AOL Time Warner to elect the four directors nominated by the Special Committee for election by the holders of all shares of AOL-LA's outstanding capital stock, voting together and (ii) to agree to certain restrictions on AOL Time Warner's ability to transfer equity securities of AOL-LA and (b) to provide that, in the event that shares of Series F Preferred Stock or Series B Preferred Stock are held by an entity other than AOL Time Warner or a wholly-owned affiliate of AOL Time Warner, or shares of Series C Preferred Stock are held by an entity other than ODC or a wholly-owned affiliate of ODC, Gustavo A. Cisneros, Ricardo J. Cisneros and/or their lineal descendents, and/or any trusts for the benefit of such persons, then all shares transferred to or held by such entity are required to be converted from Series F Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, as applicable, into that number of shares of Class B Common Stock or Class C Common Stock, as applicable, into which such shares are then convertible, and any shares of Class B Common Stock or Class C Common Stock held by such entity (including such shares of Class B Common Stock and Class C Common Stock issued upon conversion of Series F Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, as applicable) are required to be converted into that number of shares of Class A Common Stock into which such shares are then convertible. The Second Amended and Restated Registration Rights Agreement, dated as of March 8, 2002, among AOL Time Warner, AOL, ODC and AOL-LA (the "Second Amended and Restated AOL-ODC Registration Rights Agreement"), amended the existing AOL-ODC Registration Rights Agreement in order to, among other things, (i) grant AOL Time Warner (or any subsidiary of AOL Time Warner who becomes a party to the agreement pursuant to its terms) rights to cause AOL-LA to register shares of Class A Common Stock held or acquired from time to time by or issuable at any time to AOL Time Warner or such Subsidiary upon conversion, directly or indirectly, of the Notes, or payment of dividends or interest in the form of capital stock and (ii) include AOL Time Warner as an indemnified party thereunder. The Note Purchase Agreement also provides that if AOL Time Warner assigns the Note Purchase Agreement or transfers any Notes to any person that is not an AOLTW Affiliate, AOL-LA shall execute and deliver to such assignee/transferee a registration rights agreement, pursuant to which AOL-LA will grant such assignee/transferee rights to cause AOL-LA to register shares of Class A Common Stock issued to such assignee/transferee upon conversion, whether directly or indirectly, of Notes held by such assignee/transferee. Pursuant to the Stock Purchase Agreement described in Items 4 and 6 of the Statement, on June 1, 2001, AOL purchased an additional 4,717,374 shares of Series D Preferred Stock, and each of Aspen and Atlantis purchased an additional 2,268,339 shares of Series E Preferred Stock, in each case at a price of $4.6875 per share. On July 31, 2001, at AOL-LA's Annual Meeting of Stockholders, AOL-LA's stockholders approved a proposal to amend the certificate of incorporation of AOL-LA to change the liquidation preference of the Series B Preferred Stock and Series C Preferred Stock. Pursuant to the terms of the Series D Preferred Stock and Series E Preferred Stock, upon filing of AOL-LA's Restated Certificate of Incorporation on July 31, 2001, the Series D Preferred Stock and Series E Preferred Stock then outstanding were automatically converted on a one-to-one basis into shares of Series B Preferred Stock and Series C Preferred Stock, respectively. Also pursuant to the Stock Purchase Agreement, on August 1, 2001, AOL purchased 4,717,374 shares of Series B Preferred Stock, and each of Aspen and Atlantis purchased an aggregate of 2,268,339 shares of Series C Preferred Stock, in each case at a price of $4.6875 per share. References to, and descriptions of, the Note Purchase Agreement, the Second Amended and Restated AOL-ODC Registration Rights Agreement, the Second Amended and Restated Stockholders Agreement and the Voting Agreements, are qualified in their entirety by reference to the copies of such documents included as exhibits to this Amendment No. 4, which 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 Amendment No. 4, 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 Item 7 of the Statement is hereby amended and restated to read in its entirety as follows: Exhibit Number Description 1. Note Purchase Agreement, dated as of March 8, 2002, by and between America Online Latin America, Inc. and AOL Time Warner Inc. (filed as Exhibit 99.2 to America Online Latin America, Inc.'s Current Report on Form 8-K filed on March 11, 2002 and incorporated by reference herein). 2. Form of Initial Note (filed as Exhibit 10.35 to America Online Latin America, Inc.'s Annual Report on Form 10-K filed on April 1, 2002 and incorporated by reference herein). 3. Form of PIK Note (filed as Exhibit 99.4 to America Online Latin America, Inc.'s Current Report on Form 8-K filed on March 11, 2002 and incorporated by reference herein). 4. Certificate of Designation, Powers, Preferences and Rights of Series F Redeemable Convertible Preferred Stock(filed as Exhibit 99.5 to America Online Latin America, Inc.'s Current Report on Form 8-K filed on March 11, 2002 and incorporated by reference herein). 5. Second Amended and Restated Stockholders' Agreement, dated as of March 8, 2002, by and among America Online, Inc., Aspen Investments LLC, Atlantic Investments, LLC and America Online Latin America, Inc. and, for limited purposes, AOL Time Warner Inc. (filed as Exhibit 10.2 to America Online Latin America, Inc.'s Annual Report on Form 10-K filed on April 1, 2002 and incorporated by reference herein. Portions of such Exhibit containing confidential information have been omitted therefrom and have been filed by the Reporting Persons separately with the Securities and Exchange Commission). 6. Second Amended and Restated Registration Rights Agreement, dated as of March 8, 2002, by and among America Online Latin America, Inc., AOL Time Warner Inc., America Online, Inc., Aspen Investments LLC, and Atlantis Investments LLC. (filed as Exhibit 10.4 to America Online Latin America, Inc.'s Annual Report on Form 10-K filed on April 1, 2002 and incorporated by reference herein). 7. Voting Agreement, dated as of March 8, 2002, by and among AOL Time Warner Inc., America Online, Inc., Aspen Investments LLC and Atlantis Investments LLC. 8. Voting Agreement, dated as of March 8, 2002, by and among AOL Time Warner Inc., America Online, Inc., Banco Itau, S.A., Banco Banerj, S.A., Banco Itau, S.A.-Cayman Branch, and Itau Bank Limited. 9. 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. (filed as Exhibit 2 to the Reporting Persons' Amendment No. 3 to Schedule 13D filed on April 13, 2001 and incorporated by reference herein). 10. America Online Latin America, Inc.'s Restated Certificate of Incorporation (filed as Exhibit 3.1 to America Online Latin America, Inc.'s Annual Report on Form 10-K filed on April 1, 2002 and incorporated by reference herein). 11. 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. (filed as Exhibit 8 to the Reporting Persons' Amendment No. 3 to Schedule 13D filed on April 13, 2001 and incorporated by reference herein). 12. 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 by reference herein). 13. 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 on January 22, 2001 and incorporated by reference herein). SIGNATURES 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. By: /s/ Wayne H. Pace -------------------------------- Name: Wayne H. Pace Title: Executive Vice President and Chief Financial Officer Date: April 5, 2002 AMERICA ONLINE, INC. By: /s/ Joseph A. Ripp --------------------------------- Name: Joseph A. Ripp Title: Executive Vice President and Chief Financial Officer Date: April 5, 2002 SCHEDULE I ADDRESSES OF THE CISNEROS GROUP AND THE BANCO ITAU 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 01014-913 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 EXECUTIVE 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; AOL Time Warner Inc. Gerald M. Levin Chief Executive Officer; AOL Time Warner Inc. Kenneth J. Novack Vice Chairman; AOL Time Warner Inc. R.E. Turner Vice Chairman; 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 President and Chief Executive Officer of Barksdale Management Corporation 800 Woodland Parkway Suite 118 Ridgland, MS 39157 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 Principal; ZG Ventures L.L.C. 1250 Connecticut Avenue Washington, D.C. 20036 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 c/o AOL Time Warner Inc. Richard D. Parsons Co-Chief Operating Officer; AOL Time Warner Inc. Robert W. Pittman 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 and Director of Various Companies; 290 Harbor Drive Stamford, CT 06902 (a private investment firm) 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 and President of Business Development for Subscription Services and Advertising and Commerce Businesses; AOL Time Warner Inc. Adolf R. DiBiaso Executive Vice President of Strategy and Investments; AOL Time Warner Inc. Patricia Fili-Krushel Executive Vice President of Administration; AOL Time Warner Inc. Robert M. Kimmitt Executive Vice President, Global & Strategic Policy; AOL Time Warner Inc. Kenneth B. Lerer Executive Vice President; AOL Time Warner Inc. Wayne H. Pace Executive Vice President and Chief Financial Officer; 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. 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 22000 AOL Way, Dulles, Virginia 20166. Board of Directors Name and Title Present Principal Occupation - -------------- ---------------------------- Paul T. Cappuccio Executive Vice President, General Counsel and Secretary; AOL Time Warner Inc. 75 Rockefeller Plaza New York, New York 10019 J. Michael Kelly Chief Operating Officer; America Online, Inc. Barry M. Schuler 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. David M. Colburn President, Business Affairs and Development; 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 Executive Vice President, General Counsel and Secretary; America Online, Inc. Ann Brackbill Executive Vice President, Corporate Communications; America Online, Inc. EX-7 3 exhibit7cisneros.txt EXHIBIT 7 VOTING AGREEMENT CISNEROS EXHIBIT 7.0 VOTING AGREEMENT Voting Agreement, dated as of March 8, 2002 (this "Agreement"), by and among AOL Time Warner Inc. ("AOLTW"), America Online, Inc.(the "AOL Stockholder"), Aspen Investments LLC ("Aspen"), Atlantis Investments LLC ("Atlantis")(each of the above parties, a "Stockholder", and, collectively, the "Stockholders"). WHEREAS, the America Online Latin America, Inc., a Delaware corporation ("Company") and AOLTW have, contemporaneously with the execution and delivery of this Agreement, entered into a Note Purchase Agreement dated as of March 8, 2001 (the "Note Purchase Agreement") providing for the purchase by AOLTW or its permitted assigns of an aggregate principal amount of up to $160 million of the Company's 11% Senior Convertible Notes due 2007 pursuant to the terms and conditions thereof (capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Note Purchase Agreement); Now, therefore, in consideration of the foregoing and the mutual covenants and agreements contained herein and in the Note 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, each of the Stockholders agrees as follows: ARTICLE I: REPRESENTATIONS AND WARRANTIES 1.1 AOL / Cisneros Share Ownership and Voting Control. All of the capital stock of the Company record and beneficially owned by the AOL Stockholder as of the date hereof (collectively, the "AOL Shares"; together with all of the capital stock of the Company acquired after the date hereof by the AOL Stockholders, the "AOL Subject Shares") are set forth opposite such Stockholder's name on Exhibit A. All of the capital stock of the Company record and beneficially owned by Aspen ("Aspen Shares") and Atlantis ("Atlantis Shares") as of the date hereof (collectively, the "Aspen/Atlantis Shares"; together with all of the capital stock of the Company acquired after the date hereof by Aspen or Atlantis or their affiliates, the "Aspen/Atlantis Subject Shares"; together with the AOL Subject Shares, the "Subject Shares") are set forth opposite such Stockholder's name on Exhibit A. The AOL Stockholder has sole voting power over, and has sole beneficial ownership of, the AOL Shares, Aspen and Gustavo A. Cisneros have shared voting power over and shared beneficial ownership of the Aspen Shares, and Atlantis and Ricardo J. Cisneros have shared voting power over and shared beneficial ownership of the Atlantis Shares, in each case, free and clear of all liens, encumbrances, options, rights of first refusal and other similar rights and restrictions, other than as set forth under this Agreement, the Amended and Restated Stockholders' Agreement, dated as of March 30, 2001, to which the Company, the AOL Stockholder, Aspen and Atlantis are parties, the Amended and Restated Stockholders' Agreement, dated as of March 30, 2001, to which the Company, Banco Itau, S.A., Banco Banerj, S.A., Banco Itau, S.A.--Cayman Branch, Itau Bank Limited, and for limited purposes, the AOL Stockholder, Aspen, and Atlantis are parties, and the Company's Restated Certificate of Incorporation. 1.2 Power; Authority; Validity of Agreement. Each Stockholder represents and warrants that (a) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, (b) this Agreement has been duly executed and delivered and constitutes a legal, valid and binding obligation of such Stockholder enforceable against such Stockholder in accordance with its terms, except as the enforceability thereof may be limited by (x) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (y) general principles of equity (whether considered in a proceeding in equity or at law) and (c) the execution, delivery and performance by such Stockholder of this Agreement does not and will not (i) require such Stockholder to obtain any consent or approval from any Governmental Authority or third-party or (ii) conflict with such Stockholder's organizational documents. ARTICLE II: VOTING OF SHARES 2.1 Voting Obligations. Subject to the satisfaction (or waiver in writing) of each of the conditions set forth in Section 2.2, each Stockholder shall: (a) appear, in person or by proxy, or cause any other holder of record of any applicable Subject Shares owned beneficially by such Stockholder on any applicable record date (the "Record Holder") to appear, in person or by proxy, so that all the applicable Subject Shares are counted for the purpose of obtaining a quorum at a meeting of stockholders of the Company (currently contemplated to be the Company's annual meeting of stockholders for the year 2002), and at any adjournment or adjournments thereof, at which (i) a proposal to approve and adopt the Amendment to Restated Certificate of Incorporation of the Company attached hereto as Attachment 1 (the "Charter Amendments"), (ii) a proposal to approve (t) the issuance of the Initial Notes under the Note Purchase Agreement, (u) the issuance of PIK Notes or Applicable Shares as interest on the Notes in accordance with the terms of the Notes, (v) the issuance of any shares of capital stock of the Company pursuant to the conversion of the Notes or the conversion or redemption of the Applicable Shares in accordance their respective terms, (w) the issuance of Class A Common Stock pursuant to the conversion of Class B Common Stock in accordance with its terms (x) the issuance of capital stock of the Company as dividends on the Series F Preferred Stock and the Series B Preferred Stock in accordance with the terms of such securities, (y) the adjustment of the conversion price of the Notes pursuant to the anti-dilution provisions of the Notes, and (z) any other term or provision of the Note Purchase Agreement, Notes, Charter Amendments, Certificate of Designation that would require shareholder approval under Rule 4350 of the Marketplace Rules of the Nasdaq Stock Market to be effective (iii) the filing of a Certificate of Elimination in respect of the Series F Preferred Stock after the filing of the Charter Amendments and (iv) any proposal which is necessary under any foreign, federal, state or local statute or any rule or regulation of any Governmental Authority or national securities exchange to carry into effect the purpose and intent of the Note Purchase Agreement (the matters described in the foregoing clauses, (i) through (iv), the "Covered Matters") and (b) vote, or cause the Record Holder to vote, in person or by proxy, all of such Stockholder's Subject Shares in favor of each of the Covered Matters. Each 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 Covered Matter. 2.2 Conditions to Voting Obligations. The obligations of each Stockholder under Section 2.1 of this Agreement are subject to the fulfillment (or waiver in writing by such Stockholder) of each of the following conditions: (a) any governmental approvals (other than filings and the expiration of any waiting period under the HSR Act) necessary to permit the filing of the Charter Amendments and the consummation of the transactions contemplated by the Note Purchase Agreement and the Notes shall have been duly obtained and shall be in full force and effect; (b) no restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint preventing the filing of the Charter Amendments or the consummation of the transactions contemplated by the Note Purchase Agreement, the Notes or this Agreement shall be in effect, nor shall any proceeding have been brought or threatened in writing by a Governmental Authority seeking any of the foregoing; (c) no material Federal, state, local or foreign statute, rule or regulation shall have been enacted which prohibits, restricts or delays the filing of the Charter Amendments or the consummation of the transactions contemplated by the Note Purchase Agreement, the Notes or this Agreement; and (d) the Charter Amendments, the Note Purchase Agreement, the Notes and other related agreements shall be substantially in the form as such Exhibits attached to the Note Purchased Agreement, and no default by any party thereto that is material to such Stockholder shall have occurred. 2.3 Transfer of Ownership. In the event that any Stockholder intends to transfer ownership of any of the applicable Subject Shares owned of record and/or beneficially by such Stockholder to a Person that is not then a Stockholder, as a condition to the effectiveness of such transfer, in addition to any other existing restrictions, such Stockholder shall cause the transferee to agree, by executing and delivering to the other parties hereto a joinder agreement in form and substance satisfactory to each of the Stockholders, to become a party to this Agreement from and after the time such transfer is effected. ARTICLE III: MISCELLANEOUS 3.1 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 Stockholders 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 Stockholder and (b) an order of specific performance of the provisions hereof. 3.2 Several Obligations. The obligations of the Stockholders hereunder shall be "several" and not "joint" or "joint and several." Without limiting the generality of the foregoing, under no circumstances shall any Stockholder have any liability or obligation with respect to any misrepresentation or breach of covenant or agreement of any other Stockholder. 3.3 Termination. This Agreement shall terminate and be of no further force and effect, and all obligations of the parties hereunder shall cease, upon the earlier to occur of (a) a determination not to seek the Charter Amendments and a termination of the Note Purchase Agreement and (b) September 25, 2002. 3.4 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. 3.5 Expenses and Costs. All expenses and costs incurred in connection with any dispute, controversy, or claim arising out of or relating to this Agreement, including but not limited to, reasonable counsel and consultant fees, shall be paid by the non-prevailing party. [REST OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of the date set forth in the first paragraph hereof. AOL TIME WARNER INC. By: /s/ Raymond G. Murphy Name: Raymond G. Murphy Title: Vice President and Treasurer AMERICA ONLINE, INC. By: /s/ Joseph A. Ripp Name: Joseph A. Ripp Title: Chief Financial Officer ASPEN INVESTMENTS LLC By: /s/ Joan Burton Jenson Name: Joan Burton Jenson Title: ATLANTIS INVESTMENTS LLC By: /s/ Joan Burton Jenson Name: Joan Burton Jenson Title: EXHIBIT A Shares of the Company over which the Stockholders have Voting Power -------------------------------------------------------------------- - ---------------------------------------------------------------------------- Stockholder Shares of the Company - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- AOL Time Warner None - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- America Online, Inc 199,662,294 Class B Preferred Stock 62,848,124 Class A Common Stock - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- Aspen Investments LLC 55,454,220 Class C Preferred Stock 2,000,000 Class A Common Stock - ---------------------------------------------------------------------------- - ---------------------------------------------------------------------------- Atlantis Investments LLC 57,670,886 Class C Preferred Stock 2,000,000 Class A Common Stock - ---------------------------------------------------------------------------- Attachment 1 Amendment to Restated Certificate of Incorporation -------------------------------------------------- EX-8 4 exhibit8itau.txt EXHIBIT 8 VOTING AGREEMENT ITAU EXHIBIT 8.0 EXECUTION COPY VOTING AGREEMENT Voting Agreement, dated as of March 8, 2002 (this "Agreement"), by and among AOL Time Warner Inc. ("AOLTW"), Banco Itau S.A., Banco Itau S.A.--Cayman Branch and Itau Bank Limited (each, an "Stockholder" and collectively, the "Stockholders"). WHEREAS, America Online Latin America, Inc., a Delaware corporation ("Company") and AOLTW have, contemporaneously with the execution and delivery of this Agreement, entered into a Note Purchase Agreement dated as of March 8, 2002 (the "Note Purchase Agreement") providing for the purchase by AOLTW or its assigns of an aggregate principal amount of up to $160 million of the Company's 11% Senior Convertible Notes due 2007 pursuant to the terms and conditions thereof (capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Note Purchase Agreement); WHEREAS, in connection with the Note Purchase Agreement, AOLTW, America Online, Inc., Aspen Investments LLC and Atlantis Investments LLC have, contemporaneously with the execution and delivery of this Agreement, entered into a Voting Agreement, dated as of March 8, 2002, a copy of which has been made available to the Stockholders. Now, therefore, in consideration of the foregoing and the mutual covenants and agreements contained herein and in the Note 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, each of the Stockholders agree as follows: ARTICLE I: REPRESENTATIONS AND WARRANTIES 1.1 Voting Control. The number of shares of capital stock of the Company to which each Stockholder has power to instruct the voting thereof (pursuant to, and subject to the terms and conditions of, the repurchase transactions and related documentation described in the Schedule 13D and the amendments thereto under the Exchange Act filed by the Stockholders (the "Repos") as of the date hereof (collectively, the "Shares"; together with all of the capital stock of the Company to which such Stockholder acquires voting power after the date hereof, the "Subject Shares") is set forth opposite such Stockholder's name on Exhibit A. Each Stockholder has the power to instruct the voting of the applicable Shares pursuant to, and subject to the terms and conditions of, the Repos, free and clear of all liens, encumbrances, options, rights of first refusal and other similar rights and restrictions, in each case, other than as set forth under this Agreement, the Itau Stockholder Agreement and the Repos. 1.2 Power; Authority; Validity of Agreement. Each party hereto represents and warrants to the other parties that (a) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, (b) this Agreement has been duly executed and delivered and constitutes a legal, valid and binding obligation of such party enforceable against such party in accordance with its terms, except as the enforceability thereof may be limited by (x) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (y) general principles of equity (whether considered in a proceeding in equity or at law) and (c) the execution, delivery and performance by such party of this Agreement does not and will not (i) require such party to obtain any consent or approval from any Governmental Authority or third-party (other than any consent or approval or action under the Repos) or (ii) conflict with such party's organizational documents. ARTICLE II: VOTING OF SHARES 2.1 Voting Obligations. Subject to the satisfaction (or waiver in writing by the applicable Stockholders) of each of the conditions set forth in Section 2.2, and, so long as no default has occurred and is continuing under any of the Repos, each Stockholder shall: (a) instruct (and use reasonable efforts to employ any rights it has under the Repos to cause) the holders of record of any applicable Subject Shares on any applicable record date (the "Record Holder") to appear, in person or by proxy, so that all the applicable Subject Shares are counted for the purpose of obtaining a quorum at a meeting of shareholders of the Company (currently contemplated to be the Company's annual meeting of shareholders for the year 2002), and at any adjournment or adjournments thereof, at which (i) a proposal to approve and adopt the Amendment to Restated Certificate of Incorporation of the Company attached hereto as Attachment 1 (the "Charter Amendments"), (ii) a proposal to approve (t) the issuance of the Initial Notes under the Note Purchase Agreement, (u) the issuance of PIK Notes or Applicable Shares as interest on the Notes in accordance with the terms of the Notes, (v) the issuance of any shares of capital stock of the Company pursuant to the conversion of the Notes or the conversion or redemption of the Applicable Shares in accordance their respective terms, (w) the issuance of Class A Common Stock pursuant to the conversion of Class B Common Stock in accordance with its terms (x) the issuance of capital stock of the Company as dividends on the Series F Preferred Stock and the Series B Preferred Stock in accordance with the terms of such securities, (y) the adjustment of the conversion price of the Notes pursuant to the anti-dilution provisions of the Notes, in the case of each of clauses (t) through (y), in accordance with the terms contemplated by the Note Purchase Agreement and the Notes, and (z) any other term or provision of the Note Purchase Agreement, Notes, Charter Amendments, Certificate of Designation that would require shareholder approval under Rule 4350 of the Marketplace Rules of the Nasdaq Stock Market to be effective and (iii) the filing of a Certificate of Elimination in respect of the Series F Preferred Stock after the filing of the Charter Amendments (the matters described in the foregoing clauses, (i) through (iii), the "Covered Matters") and (b) instruct (and use reasonable efforts to employ any rights it has under the Repos to cause) the Record Holder to vote, in person or by proxy, all of such Stockholder's Subject Shares in favor of each of the Covered Matters (it being understood by the parties hereto that, in accordance with the terms of the Repos, the Stockholders will require at least eight (8) Business Days' notice to the vote on any Covered Matter in order to so instruct the Record Holders of the Shares with respect to any action, document, meeting or vote contemplated by clauses (a) and (b) of this Section 2.1). In the event that any Subject Shares of any Stockholder are not subject to a Repo, subject to the satisfaction (or waiver in writing by such Stockholder) of each of the conditions set forth in Section 2.2, such Stockholder agrees to appear, in person or by proxy, with and vote such Subject Shares as provided above. 2.2 Conditions to Voting Obligations. The obligations of each Stockholder under Section 2.1 of this Agreement are subject to the fulfillment (or waiver in writing by such Stockholder) of each of the following conditions at the time any shareholder action on any of the Covered Matters is otherwise to be taken: (a) any governmental approvals (other than filings and the expiration of any waiting period under the HSR Act) necessary to permit the filing of the Charter Amendments and the consummation of the transactions contemplated by the Note Purchase Agreement and the Notes shall have been duly obtained and shall be in full force and effect; (b) no restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or provision (whether temporary or permanent) preventing or challenging the Covered Matters or the filing of the Charter Amendments or the consummation of the transactions contemplated by the Note Purchase Agreement, the Notes or this Agreement shall be in effect, nor shall any proceeding have been brought or threatened in writing by a Governmental Authority seeking any of the foregoing; (c) no Federal, state, local or foreign statute, rule or regulation shall have been enacted which prohibits or restricts the Covered Matters or the filing of the Charter Amendments or the consummation of the transactions contemplated by the Note Purchase Agreement, the Notes or this Agreement; (d) Aspen Investments LLC and Atlantis Investments LLC shall have executed and delivered the Other Voting Agreement, such agreement shall be in full force and effect and such shareholders shall have approved or be approving the Covered Matters contemporaneously with the approvals of the Covered Matters hereunder; (e) no amendment or modification or waiver of the terms of the Charter Amendments, the Note Purchase Agreement or the Notes shall have occurred (i) which relates to the economic terms of the transactions contemplated hereby or (ii) which in any other case is material and adverse to such Stockholder or the holders of shares of Class A Common Stock (in either case directly or through their interest in the Company), and no default by any party thereto that is material and adverse to such Stockholder or the holders of shares of Class A Common Stock (in either case directly or through their interest in the Company) shall have occurred; (f) no actions, suits or proceedings by or before any Governmental Authority shall be pending or threatened by a Governmental Authority against or affecting the Stockholders (or their officers, directors, employees, controlling persons or affiliates) with respect to the Charter Amendments, the Note Purchase Agreement, the Notes, this Agreement or any of the transactions contemplated hereby and thereby; and (g) the delivery of the Fairness Opinion to the Special Committee of the Board of Directors of the Company. For purposes of this Section 2.2, "threatened" means that one or more relevant parties have been advised by an authorized person of a Governmental Authority that such Governmental Authority intends to proceed with an administrative or legal action, suit or proceeding. 2.3 Transfer of Ownership of Control. In the event that any Stockholder intends to hereafter transfer ownership or voting control (including through any amendment to the Repos) of any of the applicable Subject Shares owned of record and/or beneficially by such Stockholder to a Person that is not then a Stockholder, as a condition to the effectiveness of such transfer, such Stockholder shall cause the transferee to agree, by executing and delivering to the other parties hereto a joinder agreement in form and substance reasonably satisfactory to each of the Stockholders, to become a party to this Agreement from and after the time such transfer is effected; provided that no Stockholder will be restricted from amending any existing Repos or entering into new Repo transactions substantially similar to its existing Repos, so long as such Stockholder retains the right to control the voting of the Subject Shares subject thereto on terms substantially similar to the existing Repos. ARTICLE III: MISCELLANEOUS 3.1 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 Stockholders 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 Stockholder and (b) an order of specific performance of the provisions hereof. Notwithstanding the foregoing, none of the Stockholders (and none of their officers, directors, employees, controlling persons or affiliates) shall be liable to any other party hereto, the Company or any other person for failure of the Record Holders to appear at the meeting of shareholders of the Company or vote on any of the Covered Matters in accordance with the instructions provided by the Stockholders; so long as the ability to instruct the Record Holders to vote in accordance with the terms of the Repos shall not be limited through the amendment, waiver or other modification of the terms of such Repos and the Stockholders shall have used their reasonable efforts to cause such Record Holders to so appear and vote. 3.2 Several Obligations. The obligations of the Stockholders hereunder shall be "several" and not "joint" or "joint and several." Without limiting the generality of the foregoing, under no circumstances shall any Stockholder have any liability or obligation with respect to any misrepresentation or breach of covenant or agreement of any other Stockholder. 3.3 Termination. This Agreement shall terminate and be of no further force and effect, and all obligations of the parties hereunder shall cease, upon the earlier to occur of (a) a determination not to seek the Charter Amendments and a termination of the Note Purchase Agreement and (b) September 25, 2002. 3.4 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. 3.5 Miscellaneous. As used herein, the term "affiliate" when used with respect to the Stockholders shall have the meaning ascribed to such term in the Note Purchase Agreement, but shall exclude the Company to the extent it might be deemed an affiliate. [REST OF THIS PAGE INTENTIONALLY LEFT BLANK] 4 IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of the date set forth in the first paragraph hereof. AOL TIME WARNER INC. By: /s/ Raymond G. Murphy Name: Raymond G. Murphy Title: Vice President and Treasurer BANCO ITAU S.A. By: /s/ Milton Luis Ubach Monteiro Name: Milton Luis Ubach Monteiro Title: Executive Vice President and By: /s/ Marco Antonio Antunes Name: Marco Antonio Antunes Title: Manager Director BANCO ITAU S.A. - CAYMAN BRANCH By: /s/ Milton Luis Ubach Monteiro Name: Milton Luis Ubach Monteiro Title: Executive Vice President and By: /s/ Marco Antonio Antunes Name: Marco Antonio Antunes Title: Manager Director ITAU BANK LIMITED By: /s/ Henri Penchas Name: Henri Penchas Title: Director and By: /s/ Milton Luis Ubach Monteiro Name: Milton Luis Ubach Monteiro Title: Director EXHIBIT A Shares of the Company over which the Stockholders have Voting Power -------------------------------------------------------------------- - ------------------------------------- ------------------------------------------ Stockholder Shares of the Company - ------------------------------------- ------------------------------------------ - ------------------------------------- ------------------------------------------ Banco Itau S.A. 23,775,000 Shares of Class A Common Stock - ------------------------------------- ------------------------------------------ - ------------------------------------- ------------------------------------------ Banco Itau S.A.--Cayman Branch 4,237,840 Shares of Class A Common Stock - ------------------------------------- ------------------------------------------ - ------------------------------------- ------------------------------------------ Itau Bank Limited 7,925,000 Shares of Class A Common Stock - ------------------------------------- ------------------------------------------ Attachment 1 Amendment to Restated Certificate of Incorporation -------------------------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----