AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 2000
REGISTRATION STATEMENT NO. 333-94891
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------
YUPI INTERNET INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
FLORIDA 7375 65-0796526
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
YUPI INTERNET INC.
830 LINCOLN ROAD, SECOND FLOOR
MIAMI BEACH, FLORIDA 33139
(305) 604-0366
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
OSCAR L. COEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
YUPI INTERNET INC.
830 LINCOLN ROAD, SECOND FLOOR
MIAMI BEACH, FLORIDA 33139
(305) 604-0366
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------
COPIES TO:
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<S> <C>
STEPHEN A. HURWITZ, ESQ. NANCY A. SPANGLER, ESQ.
WILLIAM B. SIMMONS, ESQ. PIPER MARBURY RUDNICK & WOLFE LLP
TESTA, HURWITZ & THIBEAULT, LLP COMMERCE EXECUTIVE PARK III, SUITE 610
125 HIGH STREET 1850 CENTENNIAL PARK DRIVE
BOSTON, MASSACHUSETTS 02110 RESTON, VIRGINIA 20191
(617) 248-7000 (703) 391-7100
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE(3)
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value 8,050,000 shares $ 15.00 $ 120,750,000.00 $ 45,540.00
===============================================================================================================
</TABLE>
(1) Includes 1,050,000 shares that the underwriters have the option to purchase
to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a) under the Securities Act of 1933, as amended.
(3) Paid in connection with the original filing on January 18, 2000.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 4 to the Form S-1 Registration Statement is a Part II
filing solely to file certain exhibits and make other technical changes.
Accordingly, a preliminary prospectus has been omitted.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (other than underwriting discounts and commissions)
payable in connection with the sale of the common stock offered hereby are as
follows:
<TABLE>
<S> <C>
SEC registration fee ................................... $ 45,540
NASD filing fee ........................................ 17,750
Nasdaq National Market listing fee ..................... 95,000
Printing and engraving expenses ........................ 225,000
Legal fees and expenses ................................ 775,000
Accounting fees and expenses ........................... 325,000
Transfer agent and registrar fees and expenses ......... 10,000
Miscellaneous .......................................... 546,710
----------
Total ................................................ $2,040,000
==========
</TABLE>
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Yupi will bear all expenses shown above.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act and Yupi's Fourth Amended and
Restated Articles of Incorporation and Amended and Restated By-Laws provide for
indemnification of Yupi's directors and officers for liabilities and expenses
that they may incur in such capacities. In general, directors and officers are
indemnified with respect to actions taken in good faith in a manner reasonably
believed to be in, or not opposed to, the best interests of Yupi and, with
respect to any criminal action or proceeding, actions that the indemnitee had
no reasonable cause to believe were unlawful. Reference is made to Yupi's
Fourth Amended and Restated Articles of Incorporation and Amended and Restated
By-Laws filed as Exhibits 3.02 and 3.04 hereto, respectively.
The Underwriting Agreement provides that the underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of Yupi against certain liabilities, including liabilities under the
Securities Act of 1933. Reference is made to the form of Underwriting Agreement
filed as Exhibit 1.01 hereto.
In addition, Yupi has a directors' and officers' liability insurance
policy.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its inception, the registrant has sold the following securities
(which have been adjusted to reflect the 1,000-for-1 stock split on December
28, 1998 and the 25-for-1 stock split effected in the form of a stock dividend
on May 12, 1999) that were not registered under the Securities Act. No
underwriters were involved in the following sales of securities:
1. On October 20, 1997, the registrant sold an aggregate of 10,625,000
shares of its common stock to Camilo Cruz and Carlos Cardona at a price
of $0.00004 per share for the aggregate purchase price of $425. Such
sales were made in reliance upon the exemption provided by Section 4(2)
of the Securities Act for transactions not involving a public offering
and/or Regulation D under the Securities Act.
2. On May 27, 1998, July 23, 1998 and November 15, 1998, the registrant
sold an aggregate of 2,287,500 shares of its common stock to Ariel
Bentata at a price of $0.022 per share for the aggregate purchase price
of $50,000. Such sales were made in reliance upon the exemption provided
by Section 4(2) of the Securities Act for transactions not involving a
public offering.
II-1
<PAGE>
3. On November 15, 1998, in connection with the execution of a settlement
agreement between the registrant, Craig Doriot, Camilo Cruz, Carlos
Cardona and Ariel Bentata, the registrant sold 2,981,250 shares of its
common stock to Mr. Doriot. Such sales were made in reliance upon the
exemption provided by Section 4(2) of the Securities Act for transactions
not involving a public offering.
4. During the period from November 6, 1998 to February 19, 1999, the
registrant sold an aggregate of 742,375 shares of its common stock to 18
investors, including executive officers and directors of the registrant,
at a price of $0.6668 per share for the aggregate purchase price of
approximately $495,209. Such sales were made in reliance upon the
exemption provided by Section 4(2) of the Securities Act for transactions
not involving a public offering and/or Regulation D under the Securities
Act.
5. In March 1999, the registrant sold an aggregate of 264,200 shares of
its common stock to 13 investors, including executive officers and
directors of the registrant, at a price of $1.2528 per share for the
aggregate purchase price of approximately $330,066. Such sales were made
in reliance upon the exemption provided by Section 4(2) of the Securities
Act for transactions not involving a public offering and/or Regulation D
under the Securities Act.
6. On April 23, 1999, the registrant sold (i) 45,620 shares of its Class A
Convertible Preferred Stock to IFX Online, Inc. at a price of $21.92 per
share for the aggregate purchase price of approximately $999,990 and (ii)
an aggregate of 223,500 shares of its Class A Convertible Preferred Stock
to IFX Online, Inc. and Interprise Technology Partners, L.P. at a price
of $31.32 per share for the aggregate purchase price of approximately
$7,000,020. Such sales were made in reliance upon the exemption provided
by Regulation D under the Securities Act.
7. On May 13, 1999, the registrant sold 95,785 shares of its Class A
Convertible Preferred Stock to Interprise Technology Partners, L.P. at a
price of $31.32 per share for the aggregate purchase price of
approximately $3,000,000. Such sales were made in reliance upon the
exemption provided by Regulation D under the Securities Act.
8. On July 12, 1999 and July 28, 1999, the registrant sold an aggregate of
31,928 shares of its Class A Convertible Preferred Stock to Interprise
Technology Partners, L.P. at a price of $31.32 per share for the
aggregate purchase price of approximately $1,000,000. Such sales were
made in reliance upon the exemption provided by Regulation D under the
Securities Act.
9. On August 2, 1999, the registrant sold 31,929 shares of its Class A
Convertible Preferred Stock to Interprise Technology Partners, L.P. at a
price of $31.32 per share for the aggregate purchase price of
approximately $1,000,000. Such sales were made in reliance upon the
exemption provided by Regulation D under the Securities Act.
10. On August 25, 1999, the registrant issued an aggregate of 261,765
shares of its common stock to the former shareholders of Proveedora de
Servicios para Red Bogota.com Ltda. as partial consideration for the
purchase of all of the outstanding share capital of such company. Such
sales were made in reliance upon the exemption provided by Section 4(2)
of the Securities Act for transactions not involving a public offering
and/or Regulation S under the Securities Act.
11. On October 1, 1999, the registrant agreed to sell an aggregate of 1,944
shares of its common stock to the owners of certain assets relating to
the Internet domain www.claqueta.com as partial consideration for the
purchase of those assets. These shares were subsequently issued on
November 15, 1999. Such sales were made in reliance upon the exemption
provided by Section 4(2) of the Securities Act for transactions not
involving a public offering and/or Regulation S under the Securities Act.
II-2
<PAGE>
12. On October 27, 1999, the registrant sold an aggregate of 2,955,016
shares of its Class B Convertible Preferred Stock to Sony Corporation of
America at a price of $11.60 per share for the aggregate purchase price
of $34,300,000, consisting of $5 million in cash and the obligation to
perform future services valued by the parties at $29,300,000. Such sales
were made in reliance upon the exemption provided by Regulation D under
the Securities Act.
13. On November 5, 1999 and November 10, 1999, the registrant sold an
aggregate of 5,858,698 shares of its Class C Convertible Preferred Stock
to 20 investors at a price of $11.50 per share for the aggregate purchase
price of approximately $67,375,044, consisting of $64,375,044 in cash and
$3,000,000 in retired debt. Such sales were made in reliance upon the
exemption provided by Regulation D under the Securities Act.
14. On November 29, 1999, the registrant issued an aggregate of 37,397
shares of its common stock to the shareholders of La Cosa Interactive
S.R.L. as partial consideration for the registrant's purchase of all of
the outstanding share capital of such company. Such sales were made in
reliance upon the exemption provided by Section 4(2) of the Securities
Act for transactions not involving a public offering and/or Regulation S
under the Securities Act.
15. During the period from June 1, 1998 to March 24, 2000, the registrant
granted, net of forfeited options, options to purchase an aggregate of
9,979,052 shares of the registrant's common stock with exercise prices
ranging from $0.0001 to $12.00 per share. Such grants were made in
reliance upon the exemption provided by Section 4(2) of the Securities
Act for transactions not involving a public offering and/or Rule 701
under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
1.01x Form of Underwriting Agreement.
3.01x Third Amended and Restated Articles of Incorporation of Yupi, as amended.
3.02 Form of Fourth Amended and Restated Articles of Incorporation of Yupi, to be filed
after the closing of this offering.
3.03x By-laws, as amended, of Yupi.
3.04x Form of Amended and Restated By-laws of Yupi, to be effective after the closing of this
offering.
4.01 Specimen Certificate for shares of Yupi's Common Stock.
5.01 Legal Opinion of Steel Hector & Davis LLP.
10.01* Amended and Restated Stock Incentive Plan.
10.02 Reserved
10.03x Second Amended and Restated Registration Rights Agreement dated November 5, 1999.
10.04+x Letter Agreement dated October 27, 1999 by and between Yupi Internet Inc. and Sony
Corporation of America.
10.05x Lease dated October 11, 1999 by and between Yupi Internet Inc. and 1688 Partners Ltd.
10.06x Lease Agreement dated April 22, 1999 by and between Yupi Internet Inc. and South
Beach Tristar LLC.
10.07+ Value-Added Link Agreement dated July 20, 1999 by and between AltaVista Equipment
Corporation and Yupi Internet Inc.
10.08x Unsecured Promissory Note dated April 28, 1999 by Jacqueline O'Brien to Yupi Internet
Inc.
10.09x Unsecured Promissory Note dated April 28, 1999 by Carlos Cardona to Yupi Internet Inc.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.10x Unsecured Promissory Note dated April 28, 1999 by Marlena Delgado to Yupi Internet
Inc.
10.11x Unsecured Promissory Note dated April 28, 1999 by Oscar Coen to Yupi Internet Inc.
10.12x Unsecured Promissory Note dated October 27, 1999 by Rudy Vila to Yupi Internet Inc.
10.13x Unsecured Promissory Note dated November 24, 1999 by Victor Gutierrez to Yupi
Internet Inc.
10.14x Unsecured Promissory Note dated November 24, 1999 by Gustavo Morles to Yupi
Internet Inc.
10.15x Unsecured Promissory Note dated November 30, 1999 by Jose Luque to Yupi Internet
Inc.
10.16x Unsecured Promissory Note dated November 30, 1999 by Rodolfo Vila to Yupi Internet
Inc.
10.17x Unsecured Promissory Note dated December 23, 1999 by Damaris Valero to Yupi
Internet Inc.
10.18x Promissory Note dated August 6, 1999 by Yupi Internet Inc. to Planificacion y Estrategia
de Internet, S.L.
10.19+x Letter Agreement dated November 4, 1999 by and between Yupi Internet Inc. and News
America Incorporated.
10.20x* 2000 Stock Option and Incentive Plan.
10.21x* 2000 Employee Stock Purchase Plan.
10.22x Employment Agreement between Oscar Coen and Yupi Internet Inc.
10.23x Employment Agreement between Marlena Delgado and Yupi Internet Inc.
10.24x Employment Agreement between Carlos Cardona and Yupi Internet Inc.
10.25x Employment Agreement between Jacqueline O'Brien and Yupi Internet Inc.
10.26x Unsecured Promissory Note dated January 31, 2000 by Maria Elena Prio to Yupi Internet
Inc.
10.27x Form of Amendment No. 1 to Stock Option Grant Certificate to be executed by each of
Oscar Coen and Marlena Delgado-Coen.
10.28x Form of Amendment No. 1 to Stock Option Grant Certificate to be executed by each of
Carlos Cardona and Jackie O'Brien.
21.01 Subsidiaries.
23.01x Consent of Testa, Hurwitz & Thibeault, LLP.
23.02 Consent of Steel Hector & Davis LLP (contained in Exhibit 5.01)
23.03x Consent of PricewaterhouseCoopers LLP.
23.04x Consent of PricewaterhouseCoopers Auditores, S.L.
23.05x Consent of Price Waterhouse.
24.01x Power of Attorney.
27.01x Financial Data Schedule for the Period Ended December 31, 1997.
27.02x Financial Data Schedule for the Year Ended December 31, 1998.
27.03x Financial Data Schedule for the Year Ended December 31, 1999.
</TABLE>
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* Indicates a management contract or any compensatory plan, contract or
arrangement.
/dagger/ To be filed by amendment.
+ Confidential treatment has been requested as to omitted portions pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
x Previously filed.
II-4
<PAGE>
(b) Financial Statement Schedules.
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 14 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes (1) to provide to the
underwriters at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser; (2) that for
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective; and (3) that for the purpose of determining
any liability under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant has duly caused this Amendment to the Registration Statement
(File No. 333-94891) to be signed on its behalf by the undersigned, thereunto
duly authorized, in Miami Beach, Florida on April 7, 2000.
YUPI INTERNET INC.
By: /s/ LUIS E. SAN MIGUEL
Luis E. San Miguel
Senior Vice President,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
- ------------------------------------ ---------------------------------------- --------------
<S> <C> <C>
* President, Chief Executive Officer and April 7, 2000
Director (Principal Executive Officer)
Oscar L. Coen
/s/ LUIS E. SAN MIGUEL Senior Vice President, Chief Financial April 7, 2000
Officer and Treasurer (Principal
Luis E. San Miguel
Financial and Accounting Officer)
* Director April 7, 2000
Ariel Bentata
* Director April 7, 2000
Carlos Cardona
* Director April 7, 2000
Juan Carlos Campuzano
* Director April 7, 2000
Camilo Cruz
* Director April 7, 2000
Fred Ehrlich
* Director April 7, 2000
David R. Parker
* Director April 7, 2000
Armando M. Codina
* By: /s/ LUIS E. SAN MIGUEL
Luis E. San Miguel
Attorney-in-Fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
1.01x Form of Underwriting Agreement.
3.01x Third Amended and Restated Articles of Incorporation of Yupi, as amended.
3.02 Form of Fourth Amended and Restated Articles of Incorporation of Yupi, to be filed
after the closing of this offering.
3.03x By-laws, as amended, of Yupi.
3.04x Form of Amended and Restated By-laws of Yupi, to be effective after the closing of this
offering.
4.01 Specimen Certificate for shares of Yupi's Common Stock.
5.01 Legal Opinion of Steel Hector & Davis LLP.
10.01* Amended and Restated Stock Incentive Plan.
10.02 Reserved
10.03x Second Amended and Restated Registration Rights Agreement dated November 5, 1999.
10.04+x Letter Agreement dated October 27, 1999 by and between Yupi Internet Inc. and Sony
Corporation of America.
10.05x Lease dated October 11, 1999 by and between Yupi Internet Inc. and 1688 Partners Ltd.
10.06x Lease Agreement dated April 22, 1999 by and between Yupi Internet Inc. and South
Beach Tristar LLC.
10.07+ Value-Added Link Agreement dated July 20, 1999 by and between AltaVista Equipment
Corporation and Yupi Internet Inc.
10.08x Unsecured Promissory Note dated April 28, 1999 by Jacqueline O'Brien to Yupi Internet
Inc.
10.09x Unsecured Promissory Note dated April 28, 1999 by Carlos Cardona to Yupi Internet Inc.
10.10x Unsecured Promissory Note dated April 28, 1999 by Marlena Delgado to Yupi Internet
Inc.
10.11x Unsecured Promissory Note dated April 28, 1999 by Oscar Coen to Yupi Internet Inc.
10.12x Unsecured Promissory Note dated October 27, 1999 by Rudy Vila to Yupi Internet Inc.
10.13x Unsecured Promissory Note dated November 24, 1999 by Victor Gutierrez to Yupi
Internet Inc.
10.14x Unsecured Promissory Note dated November 24, 1999 by Gustavo Morles to Yupi
Internet Inc.
10.15x Unsecured Promissory Note dated November 30, 1999 by Jose Luque to Yupi Internet
Inc.
10.16x Unsecured Promissory Note dated November 30, 1999 by Rodolfo Vila to Yupi Internet
Inc.
10.17x Unsecured Promissory Note dated December 23, 1999 by Damaris Valero to Yupi
Internet Inc.
10.18x Promissory Note dated August 6, 1999 by Yupi Internet Inc. to Planificacion y Estrategia
de Internet, S.L.
10.19+x Letter Agreement dated November 4, 1999 by and between Yupi Internet Inc. and News
America Incorporated.
10.20x* 2000 Stock Option and Incentive Plan.
10.21x* 2000 Employee Stock Purchase Plan.
10.22x Employment Agreement between Oscar Coen and Yupi Internet Inc.
10.23x Employment Agreement between Marlena Delgado and Yupi Internet Inc.
10.24x Employment Agreement between Carlos Cardona and Yupi Internet Inc.
10.25x Employment Agreement between Jacqueline O'Brien and Yupi Internet Inc.
10.26x Unsecured Promissory Note dated January 31, 2000 by Maria Elena Prio to Yupi Internet
Inc.
10.27x Form of Amendment No. 1 to Stock Option Grant Certificate to be executed by each of
Oscar Coen and Marlena Delgado-Coen.
10.28x Form of Amendment No. 1 to Stock Option Grant Certificate to be executed by each of
Carlos Cardona and Jackie O'Brien.
21.01 Subsidiaries.
23.01x Consent of Testa, Hurwitz & Thibeault, LLP.
23.02 Consent of Steel Hector & Davis LLP (contained in Exhibit 5.01)
23.03x Consent of PricewaterhouseCoopers LLP.
23.04x Consent of PricewaterhouseCoopers Auditores, S.L.
23.05x Consent of Price Waterhouse.
24.01x Power of Attorney.
27.01x Financial Data Schedule for the Period Ended December 31, 1997.
27.02x Financial Data Schedule for the Year Ended December 31, 1998.
27.03x Financial Data Schedule for the Year Ended December 31, 1999.
</TABLE>
- ----------------
* Indicates a management contract or any compensatory plan, contract or
arrangement.
/dagger/ To be filed by amendment.
+ Confidential treatment has been requested as to omitted portions pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
x Previously filed.
EXHIBIT 3.02
FOURTH AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
YUPI INTERNET INC.
ARTICLE I
NAME
The name of this corporation shall be Yupi Internet Inc. (hereinafter
the "CORPORATION").
ARTICLE II
PURPOSES
The Corporation may engage in any activity or business permitted under
the laws of the United States and of the State of Florida.
ARTICLE III
AUTHORIZED SHARES
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 305,000,000, consisting of (i)
300,000,000 shares of Common Stock, $.0001 par value per share ("COMMON Stock"),
and 5,000,000 shares of Preferred Stock, $.01 par value per share ("PREFERRED
STOCK").
Unless otherwise provided hereinafter or in any articles of amendment
providing for the determination of a class or series of stock, shares of capital
stock of the Corporation that have been issued and which are subsequently
acquired by the Corporation shall constitute issued but not outstanding shares
of the same class and series, until canceled or disposed of (whether by resale
or otherwise) by the Corporation, and upon cancellation, the canceled shares
shall constitute authorized and unissued shares of the same class and shall be
undesignated as to series.
For purposes of determining funds lawfully available for any dividends
or other distribution upon shares of stock, amounts needed to satisfy the rights
of shareholders upon dissolution who have preferential rights superior to those
of shareholders of the stock receiving such dividend or distribution shall not
be deducted from the Corporation's total assets.
1
<PAGE>
The following is a statement of the designations and the powers, privileges and
rights, and the qualifications, limitations or restrictions thereof in respect
of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. GENERAL. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by the Board of Directors
upon any issuance of the Preferred Stock of any series.
2. VOTING RIGHTS. Except as otherwise required by law or these Fourth
Amended and Restated Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held of record by such
holder on the books of the Corporation for the election of directors and on all
matters submitted to a vote of shareholders of the Corporation. Except as
otherwise required by law or provided herein, holders of Common Stock shall vote
together with holders of the Preferred Stock as a single class, subject to any
special or preferential voting rights of any then outstanding Preferred Stock.
There shall be no cumulative voting.
3. DIVIDENDS. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. DISSOLUTION, LIQUIDATION OR WINDING UP. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, each issued and outstanding share of Common
Stock shall entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to the holders of Common
Stock, subject to any preferential rights of any then outstanding Preferred
Stock.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issue of the shares thereof, to determine and fix
2
<PAGE>
such voting powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, special voting rights, conversion rights,
redemption privileges and liquidation preferences, as shall be stated and
expressed in such resolutions, all to the full extent now or hereafter permitted
by the corporate law of Florida. Without limiting the generality of the
foregoing, the resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank equally or be
junior to the Preferred Stock of any other series to the extent permitted by
law. Except as otherwise specifically provided in a resolution establishing a
series of Preferred Stock, no vote of the holders of the Preferred Stock or
Common Stock shall be a prerequisite to the issuance of any shares of any series
of the Preferred Stock authorized by and complying with the conditions of these
Fourth Amended and Restated Articles of Incorporation, the right to have such
vote being expressly waived by all present and future holders of the capital
stock of the Corporation.
ARTICLE IV
REGISTERED AGENT AND OFFICE
The registered agent of this Corporation and her address is as follows:
Maria Elena Prio, 830 Lincoln Road, Second Floor, Miami Beach, Florida 33139.
ARTICLE V
PRINCIPAL OFFICE
The Corporation shall maintain its principal office at 830 Lincoln
Road, Second Floor, Miami Beach, Florida 33139, or at such other place as the
Board of Directors may designate from time to time.
ARTICLE VI
BOARD OF DIRECTORS
The Corporation shall have at least one director, but the Bylaws may
provide for the increase or decrease in the number of directors, provided that
the number of directors shall never be less than one.
ARTICLE VII
REMOVAL OF DIRECTORS
Any one or more or all of the directors may be removed without cause
only by the holders of at least seventy-five percent (75%) of the shares
entitled to vote at an election of directors. Any one or more or all of the
directors may be removed with cause only by the holders of at least a majority
of the shares then entitled to vote at an election of directors.
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<PAGE>
ARTICLE VIII
SHAREHOLDER ACTION
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special meeting of
shareholders of the Corporation and may not be effected by any consent in
writing by such shareholders.
ARTICLE IX
SPECIAL MEETINGS OF SHAREHOLDERS
Special meetings of the shareholders of the Corporation, for any
purpose or purposes, may be called by the Board of Directors, the Chairman of
the Board or the President, and shall be called by the Chairman of the Board or
Secretary, upon the written request of the holders of not less than fifty
percent (50%) of the issued and outstanding shares of the capital stock of the
Corporation entitled to vote on each issue proposed to be considered at such
meeting. Only business within the purpose or purposes described in the notice of
special meeting may be conducted at a special meeting of shareholders.
ARTICLE X
AMENDMENT OF THE BYLAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Florida, the Board of Directors of the Corporation is
expressly authorized to adopt, amend, alter and repeal the bylaws of the
Corporation. Shareholders may adopt, amend, repeal or alter the bylaws of the
Corporation, including bylaws adopted by the Board of Directors, without
approval of the Board of Directors only if such adoption, amendment, repeal or
alteration is approved by the affirmative vote of the holders of at least
seventy-five percent (75%) of the issued and outstanding shares of the capital
stock of the Corporation entitled to vote on such matters.
ARTICLE XI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION.
(a) The Corporation (and any successor to the Corporation by merger or
otherwise) shall, and does hereby, indemnify, to the fullest extent permitted or
authorized by current or future legislation (specifically including the full
extent of indemnification permitted by ss.607.0850(7) Fla. Stat. (1994)), or
current or future judicial or administrative decisions (but, in the case of any
such future legislation or decisions, only to the extent that it permits the
Corporation to provide broader indemnification rights than permitted prior to
such legislation or decision), each person (including the heirs, personal
representatives, executors, administrators and estate of the person) who was or
is a party, or is threatened to be made a party, or was or is a witness, to any
threatened, pending or completed action, suit or proceeding, whether civil,
4
<PAGE>
criminal, administrative or investigative and any appeal therefrom
(collectively, a "PROCEEDING"), against all liability (which for purposes of
this Article includes all judgments, settlements, penalties, fines and taxes
under the Employee Retirement Income Security Act of 1974, as amended) and
costs, charges, and expenses (including attorneys' fees) asserted against him or
incurred by him by reason of the fact that the person is or was (i) a director,
or (ii) an officer, or (iii) an employee of the Corporation who is specifically
granted the indemnification rights provided hereby by the Board of Directors, or
(iv) serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise (including serving as a fiduciary of an employee benefit plan) and as
to whom the Board has granted the right to indemnification provided hereby (each
an "INDEMNIFIED PERSON").
(b) Notwithstanding the foregoing, except with respect to the
indemnification specified in the third sentence of Section 3 of this Article,
the Corporation shall indemnify an Indemnified Person in connection with a
Proceeding (or part thereof) initiated by an Indemnified Person only if
authorization for the Proceeding (or part thereof) was not denied by the Board
of Directors of the Corporation, acting in its sole discretion, within 60 days
after receipt of notice thereof from the Indemnified Person.
SECTION 2. ADVANCE OF COSTS, CHARGES AND EXPENSES. Costs, charges and expenses
(including attorneys' fees) incurred by an Indemnified Person in defending a
Proceeding shall be paid by the Corporation to the fullest extent permitted or
authorized by current or future legislation or current or future judicial or
administrative decisions (but, in the case of any future legislation or
decisions, only to the extent that it permits the Corporation to provide broader
rights to advance costs, charges and expenses than permitted prior to the
legislation or decisions) in advance of the final disposition of the Proceeding,
upon receipt of an undertaking reasonably satisfactory to the Board of Directors
(the "UNDERTAKING") by or on behalf of the Indemnified Person to repay all
amounts so advanced if it is ultimately determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article;
provided that, in connection with a Proceeding (or part thereof) initiated by
such Indemnified Person (except a Proceeding authorized by the second sentence
of Section 3 of this Article), the Corporation shall pay the costs, charges and
expenses in advance of the final disposition of the Proceeding only if
authorization for the Proceeding (or part thereof) was not denied by the Board
of Directors of the Corporation, acting in its sole discretion, within 60 days
after receipt of a request for advancement accompanied by an Undertaking. A
person to whom costs, charges and expenses are advanced pursuant to this Article
shall not be obligated to repay pursuant to the Undertaking until the final
determination of (a) the pending Proceeding in a court of competent jurisdiction
concerning the right of that person to be indemnified or (b) the obligation of
the person to repay pursuant to the Undertaking.
The Board of Directors may, upon approval of the Indemnified Person,
authorize the Corporation's counsel to represent the Indemnified Person in any
action, suit or proceeding, whether or not the Corporation is a party to the
action, suit or proceeding. In the event that the
5
<PAGE>
Corporation's counsel is representing the Indemnified Person and subject to any
limitations imposed by law or any insurance policy referred to in Section 5 of
this Article XI, any Indemnified Person shall have the right to retain separate
counsel and to have the fees and expenses of such counsel paid as incurred as
provided herein in the event such person reasonably believes that there is an
actual or potential conflict in interest between the Corporation and such person
or in the event the Corporation or its insurer shall have failed to assume the
defense and employ counsel acceptable to such person within a reasonable period
of time after commencement of any action.
SECTION 3. PROCEDURE FOR INDEMNIFICATION. Any indemnification or advance under
this Article shall be made promptly, and in any event within 60 days after
delivery of the written request of the Indemnified Person. The right to
indemnification or advances as granted by this Article shall be enforceable by
an Indemnified Person in any court of competent jurisdiction if the Corporation
denies the request under this Article in whole or in part, or if no disposition
of the request is made within the 60-day period after delivery of the request.
The requesting person's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any action shall also be indemnified by the Corporation. It shall be a defense
available to the Corporation to assert in the action that indemnification is
prohibited by law or that the claimant has not met the standard of conduct, if
any, required by current or future legislation or by current or future judicial
or administrative decisions for indemnification (but, in the case of future
legislation or decision, only to the extent that the legislation does not impose
a more stringent standard of conduct than permitted prior to the legislation or
decisions). The burden of proving this defense shall be on the Corporation.
Neither (a) the failure of the Corporation (including its Board of Directors or
any committee thereof, its independent legal counsel, and its shareholders) to
have made a determination (prior to the commencement of the action) that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct, if any, nor (b) the fact that there has
been an actual determination by the Corporation (including its Board of
Directors or any committee thereof, its independent legal counsel, and its
shareholders) that the claimant has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 4. SURVIVAL OF INDEMNIFICATION. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which those
indemnified may now or hereafter be entitled under any by-law, statute,
agreement, vote of shareholders or disinterested directors or recommendation of
counsel or otherwise, both as to actions in the person's capacity as a director,
officer or employee and as to actions in another capacity while still a
director, officer or employee, and shall continue as to an Indemnified Person
who has ceased to be a director or officer or employee and shall inure to the
benefit of the estate, heirs, personal representatives, beneficiaries, executors
and administrators of such a person. All rights to indemnification and advances
under this Article shall be deemed to be a contract between the Corporation and
each Indemnified Person who is an Indemnified Person at any time while this
Article is in effect. Any repeal or modification of this Article or any repeal
or modification of relevant provisions of the
6
<PAGE>
Florida Business Corporation Act or any other applicable laws shall not in any
way diminish the rights to indemnification of such Indemnified Person or the
obligations of the Corporation arising hereunder for claims relating to matters
occurring prior to the repeal or modification. The Board of Directors of the
Corporation shall have the authority, by resolution, to provide for
indemnification of officers, employees or agents of the Corporation and for such
other indemnification of Indemnified Persons as it deems appropriate.
SECTION 5. INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (including serving as a fiduciary of an employee benefit plan),
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article or the applicable provisions of the Florida Business
Corporation Act.
SECTION 6. SAVINGS CLAUSE. If this Article or any portion is invalidated or held
to be unenforceable on any ground by a court of competent jurisdiction, the
Corporation shall nevertheless indemnify each Indemnified Person described in
Section 1 of this Article to the fullest extent permitted by all applicable
portions of this Article that have not been invalidated or adjudicated
unenforceable, and as permitted by applicable law.
ARTICLE XII
AMENDMENT OF ARTICLES
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Fourth Amended and Restated Articles of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on shareholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions of this Article XII and the
provisions of Articles VII, IX and X of these Fourth Amended and Restated
Articles of Incorporation may not be altered, amended or repealed in any respect
unless such alteration, amendment or repeal is approved by the affirmative vote
of the holders of at least seventy-five percent (75%) of the issued and
outstanding shares of capital stock of the Corporation entitled to vote on such
matter, voting together as a single class; provided, however, that such
seventy-five percent (75%) vote shall not be required for any alteration,
amendment or repeal unanimously recommended by the Board of Directors.
* * *
These Fourth Amended and Restated Articles of Incorporation were duly
adopted pursuant to Sections 607.1003 and 607.1007 of the Florida Business
Corporation Act by the Board of Directors of the Corporation on February 7, 2000
and by the written consent of the
7
<PAGE>
holders of the issued and outstanding shares of the Common Stock, Class A
Convertible Preferred Stock, Class B Convertible Preferred Stock and Class C
Convertible Preferred Stock dated as of _______________, 2000. The number of
votes cast in favor of these Fourth Amended and Restated Articles of
Incorporation was sufficient for the approval by such holders.
IN WITNESS WHEREOF, the Corporation has caused these Fourth Amended and
Restated Articles of Incorporation to be executed by its President and Secretary
on _______________, 2000.
YUPI INTERNET INC.
By: _______________________________
Oscar L. Coen, President
By: _______________________________
Maria Elena Prio, Secretary
8
EXHIBIT 4.01
[Yupi Logo]
WWW.YUPI.COM Shares
Common Stock
CUSIP 988920 10 4
SEE REVERSE SIDE FOR
Yupi Internet Inc. CERTAIN DEFINITIONS
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
THIS
CERTIFIES
That
----------------------------------------------------------------------------
is the owner of
-----------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.0001 PER
SHARE, OF
Yupi Internet Inc.
(the "Corporation") transferable on the books of the Corporation by the holder
hereof in person or by duly authorized attorney, upon surrender of this
Certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to all of the provisions of the
Fourth Amended and Restated Articles of Incorporation and the Amended and
Restated Bylaws of the Corporation and all amendments thereto, to all of which
the holder by acceptance hereof assents.
This Certificate is not valid unless countersigned by the Transfer Agent and
registered by the Registrar.
WITNESS, the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
[YUPI INTERNET INC. /s/ Maria Elena Prio /s/ Oscar Coen
SEAL] SECRETARY President and Chief
Executive Officer
The following text appears to the right of the above signatures: "AUTHORIZED
SIGNATURE".
The following text appears to the right of the above text: "COUNTERSIGNED AND
REGISTERED. AMERICAN STOCK TRANSFER & TRUST COMPANY (NEW YORK, N.Y.) TRANSFER
AGENT AND REGISTRAR.
<PAGE>
Yupi Internet Inc.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _______ Custodian ______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as
tenants in common ________________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received, _______________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
- -------------------------------------------------------------------------
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
---------------------------------
-----------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
Signature(s) Guaranteed:
- --------------------------------------------------------------------------------
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO S.E.C. RULE
17AD-18.
THE CORPORATION WILL FURNISH, WITHOUT CHARGE, TO EACH SHAREHOLDER WHO SO
REQUESTS, THE DESIGNATIONS, LIMITATIONS, PREFERENCES AND RELATIVE RIGHTS OF EACH
CLASS OR SERIES OF STOCK (AND THE AUTHORITHY OF THE BOARD OF DIRECTORS TO
DETERMINE VARIATIONS FOR FUTURE SERIES).
<PAGE>
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILIATED OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
EXHIBIT 5.01
[Steel Hector & Davis LLP Letterhead]
April 7, 2000
Yupi Internet Inc.
1688 Meridian Avenue, 10th Floor
Miami Beach, Florida 33139
Ladies and Gentlemen:
We have acted as special Florida counsel to Yupi Internet Inc. (the
"Corporation") in connection with the Corporation's filing with the Securities
and Exchange Commission of a registration statement on Form S-1 (the
"Registration Statement"). The Registration Statement relates to the proposed
initial public offering by the Corporation of up to 8,050,000 shares of common
stock (the "Common Stock"), par value $.0001 per share, of the Corporation (the
"IPO Shares"). The IPO Shares include 1,050,000 shares of Common Stock subject
to an over-allotment option granted to the underwriters to be named in the
prospectus ("Prospectus") which is included in the Registration Statement.
In connection therewith, we have examined (1) the Corporation's Third
Amended and Restated Articles of Incorporation, as amended to the date hereof
(the "Third Amended Articles"), (2) the proposed Amendment to the Third Amended
Articles which, when duly approved by the shareholders of the Corporation and
properly filed with the Department of State of the State of Florida, will
authorize the number of shares of Common Stock necessary for issuance of the IPO
shares, (3) the Corporation's Bylaws, (4) resolutions adopted by the Board of
Directors of the Corporation providing, among other things, for the issuance of
the IPO Shares, and (5) such other corporate documents and records, certificates
of public officials and questions of law as we deemed necessary or appropriate
for the purposes of this opinion. We have also reviewed the relevant statutory
provisions of the Florida Business Corporation Act, and such other legal
authority in Florida as we have deemed relevant.
Based upon and subject to the foregoing, we are of the opinion that the
IPO Shares, when issued, paid for and delivered as contemplated in the
Registration Statement, for a price approved by the Corporation's Board of
Directors, or a duly authorized committee thereof, will be validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.01 to the
Registration Statement and to the reference to us in the Prospectus contained
therein under the caption "Legal Matters."
Very truly yours,
/s/ Steel Hector & Davis LLP
STEEL HECTOR & DAVIS LLP
EXHIBIT 10.01
YUPI INTERNET, INC.
STOCK INCENTIVE PLAN
SECTION 1.
PURPOSE
The purpose of this Plan is to promote the interests of the Company by
providing the opportunity to purchase Shares or to receive compensation which is
based upon appreciation in the value of Shares to Employees and Key Persons in
order to attract and retain Employees and Key Persons by providing an incentive
to work to increase the value of Shares and a stake in the future of the Company
which corresponds to the stake of each of the Company's shareholders. The Plan
provides for the grant of Incentive Stock Options, Non-Qualified Stock Options,
Restricted Stock Awards and Stock Appreciation Rights to aid the Company in
obtaining these goals.
SECTION 2.
DEFINITIONS
Each term set forth in this Section shall have the meanings set forth
opposite such term for purposes of this Plan and, for purposes of such
definitions, the singular shall include the plural and the plural shall include
the singular, and reference to one gender shall include the other gender.
2.1 BOARD means the Board of Directors of the Company.
2.2 CODE means the Internal Revenue Code of 1986, as amended.
2.3 COMMITTEE means the Compensation Committee of the Board.
2.4 COMMON STOCK means the $.0001 par value per share common stock of
the Company.
2.5 COMPANY means Yupi Internet, Inc., a Florida corporation, and any
successor to such organization.
2.6 EMPLOYEE means an employee of the Company, a Subsidiary or a
Parent.
2.7 EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
2.8 EXERCISE PRICE means the price which shall be paid to purchase one
(1) Share upon the exercise of an Option granted under this Plan.
2.9 FAIR MARKET VALUE means the price at which the Committee, acting in
good faith, determines through any reasonable valuation method that a Share
might change hands between a
<PAGE>
- 2 -
willing buyer and a willing seller, neither being under any compulsion to buy or
to sell and both having reasonable knowledge of the relevant facts.
2.10 ISO means an option granted under this Plan to purchase Shares
which is intended by the Company to satisfy the requirements of Code Section 422
as an incentive stock option.
2.11 KEY PERSON means (i) a member of the Board who is not an Employee,
(ii) a consultant, distributor or other person who has rendered valuable
services to the Company, a Subsidiary or a Parent, (iii) a person who has
incurred, or is willing to incur, financial risk in the form of guaranteeing or
acting as co-obligor with respect to debts or other obligations of the Company,
or (iv) a person who has extended credit to the Company. Key Persons are not
limited to individuals and, subject to the preceding definition, may include
corporations. partnerships, associations and other entities.
2.12 NON-ISO means an option granted under this Plan to purchase Shares
which is not intended by the Company to satisfy the requirements of Code Section
422.
2.13 OPTION means an ISO or a Non-ISO.
2.14 PARENT means any corporation which is a parent of the Company
(within the meaning of Code Section 424).
2.15 PARTICIPANT means an individual who receives a Stock Incentive
hereunder.
2.16 PLAN means the Yupi Internet, Inc. Stock Incentive Plan, as
amended from time to time.
2.17 SHARE means a share of the Common Stock of the Company.
2.18 STOCK INCENTIVE means an ISO, a Non-ISO, a Restricted Stock Award
or a Stock Appreciation Right.
2.19 STOCK INCENTIVE AGREEMENT means an agreement between the Company
and a Participant evidencing an award of a Stock Incentive.
2.20 SUBSIDIARY means any corporation which is a subsidiary of the
Company (within the meaning of Code Section 424(f).
2.21 SURRENDERED SHARES means the Shares described in Section 8.2 which
(in lieu of being purchased) are surrendered for cash or Shares, or for a
combination of cash and Shares, in accordance with Section 8.
2.22 TEN PERCENT SHAREHOLDER means a person who owns (after taking into
account the attribution rules of Code Section 424(d)) more than ten percent
(10%) of the total combined voting power of all classes of shares of either the
Company, a Subsidiary or a Parent.
<PAGE>
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SECTION 3.
SHARES SUBJECT TO STOCK INCENTIVES
The total number of Shares that may be issued pursuant to Stock
Incentives under this Plan shall not exceed Ten Million Shares (10,000,000) as
adjusted pursuant to Section 11. Such Shares shall be reserved, to the extent
that the Company deems appropriate, from authorized but unissued Shares, and
from Shares which have been reacquired by the Company. Furthermore, any Shares
subject to a Stock Incentive which remain after the cancellation, expiration or
exchange of such Stock Incentive thereafter shall again become available for use
under this Plan, but any Surrendered Shares which remain after the surrender of
an ISO or a Non-ISO under Section 8 shall not again become available for use
under this Plan.
SECTION 4.
EFFECTIVE DATE
The effective date of this Plan shall be the date it is adopted by the
Board, provided the shareholders of the Company approve this Plan within twelve
(12) months after such effective date. If such effective date comes before such
shareholder approval, any Stock Incentives granted under this Plan before the
date of such approval automatically shall be granted subject to such approval.
SECTION 5.
ADMINISTRATION
This Plan shall be administered by the Board. The Board, actin in its
absolute discretion, shall exercise such powers and take such action as
expressly called for under this Plan. The Board shall have the power to
interpret this Plan and, subject to Section 13 to take such other action in the
administration and operation of the Plan as it deems equitable under the
circumstances. The Board's actions shall be binding on the Company, on each
affected Employee or Key Person, and on each other person directly or indirectly
affected by such actions.
The Board may delegate its authority under the Plan, in whole or in
part, to a Committee appointed by the Board consisting of not less than two (2)
directors, each of whom does not while a member of the Committee, or has not
during the one (1) year prior to serving as a member of the Committee. received
equity securities of the Company, Parent or Subsidiary, pursuant to this Plan or
any other plan of the Company, Parent or Subsidiary, except as may be permitted
under Section 16(b)(3) of the Exchange Act. The Committee (if appointed) shall
act according to the policies and procedures set forth in the Plan and to those
policies and procedures established by the Board, and the Committee shall have
such powers and responsibilities as are set forth by the Board. Reference to the
Board in this Plan shall specifically include reference to the Committee where
the Board has delegated it authority to the Committee, and any action by the
Committee pursuant to a delegation of authority by the Board shall be deemed an
action by the Board under the Plan. Notwithstanding the above, the Board may
assume the powers and responsibilities granted to the Committee at any time, in
whole or in part.
<PAGE>
- 4 -
SECTION 6.
ELIGIBILITY
Except as provided below, only Employees shall be eligible for the
grant of Stock Incentives under this Plan, but no Employee shall have the right
to be ranted a Stock Incentive under this Plan merely as a result of his or her
status as an Employee. Key Persons may be eligible, subject to written approval
by the Board, for the grant of Stock Incentives under this Plan, but only if the
Key Person has provided valuable services to the Company, a Subsidiary or a
Parent, and only if the Stock Incentive is not an ISO.
SECTION 7
TERMS OF STOCK INCENTIVES
7.1 TERMS AND CONDITIONS OF ALL STOCK INCENTIVES.
(a) The Committee, in its absolute discretion, shall grant
Stock Incentives under this Plan from time to time and shall have the right to
grant new Stock Incentives in exchange for outstanding Stock Incentives. Stock
Incentives shall be granted to Employees or Key Persons selected by the
Committee, and the Committee shall be under no obligation whatsoever to grant
Stock Incentives to all Employees or Key Persons, or to grant all Stock
Incentives subject to the same terms and conditions. Each grant of a Stock
Incentive shall be evidenced by a Stock Incentive Agreement.
(b) The number of Shares as to which a Stock Incentive shall
be granted shall be determined by the Committee in its sole discretion, subject
to the provisions of Section 3 as to the total number of shares available for
grants under the Plan.
(c) Each Stock Incentive shall be evidenced by a Stock
Incentive Agreement executed by the Company and the Participant, which shall be
in such form and contain such terms and conditions as the Committee in its
discretion may, subject to the provisions of the Plan, from time to time
determine.
(d) The date a Stock Incentive is granted shall be the date on
which the Committee has approved the terms and conditions of the Stock Incentive
Agreement and has determined the recipient of the Stock Incentive and the number
of Shares covered by the Stock Incentive and has taken all such other action
necessary to complete the grant of the Stock Incentive.
7.2 TERMS AND CONDITIONS OF OPTIONS. Each grant of an Option shall be
evidenced by a Stock Incentive Agreement which shall:
(I) specify whether the Option is an ISO or Non-ISO; and
(II) incorporate such other terms and conditions as the
Committee, acting in its absolute discretion, deems consistent with the terms of
this Plan, including (without limitation) a restriction on the number of Shares
subject to the Option which first become exercisable or subject to surrender
during any calendar year.
<PAGE>
- 5 -
In determining Employee(s) or Key Person(s) to whom an Option
shall be granted and the number of Shares to be covered by such Option, the
Committee may take into account the recommendations of the President of the
Company and its other officers, the duties of the Employee or Key Person, the
present and potential contributions of the Employee or Key Person to the success
of the Company, the anticipated number of years of service remaining before the
attainment by the Employee of retirement age, and other factors deemed relevant
by the Committee, in its sole discretion, in connection with accomplishing the
purpose of this Plan. An Employee or Key Person who has been granted an Option
to purchase Shares, whether under this Plan or otherwise, may be granted one or
more additional Options.
If the Committee grants an ISO and a Non-ISO to an Employee on
the same date, the right of the Employee to exercise or surrender one such
Option shall not be conditioned on his or her failure to exercise or surrender
the other such Option.
(a) EXERCISE PRICE. Subject to adjustment in accordance with
Section 11 and the other provisions of this Section, the Exercise Price shall be
as set forth in the applicable Stock Incentive Agreement. With respect to each
grant of an ISO to a Participant who is not a Ten Percent Shareholder, the
Exercise Price shall not be less than the Fair Market Value on the date the ISO
is granted. With respect to each grant of an ISO to a Participant who is a Ten
Percent Shareholder, a Ten Percent Shareholder shall not be less than one
hundred ten percent (110%) of the Fair Market Value on the date the ISO is
granted. If a Stock Incentive is a Non-ISO, the Exercise Price for each Share
shall be no less than the minimum price required by applicable state law, or by
the Company's governing instrument, or $0.01, whichever price is greater.
(b) OPTION TERM. Each Option granted under this Plan shall be
exercisable in whole or in part at such time or times as set forth in the
related Stock Incentive Agreement, but no Stock Incentive Agreement shall:
(i) make an Option exercisable before the date such
Option is granted; or
(ii) make an option exercisable after the earlier of
the:
(A) the date such Option is exercised in
full, or
(B) the date which is the tenth (10th)
anniversary of the date such Option is granted. if such Option is a Non-ISO or
an ISO granted to a non-Ten Percent Shareholder. or the date which is the fifth
(5th) anniversary of the date such Option is granted, if such Option is an ISO
granted to a Ten Percent Shareholder.
A Stock Incentive Agreement may provide for the exercise of an
Option after the employment of an Employee has terminated for any reason
whatsoever, including death or disability.
(c) PAYMENT. Payment for all shares of Stock purchased
pursuant to exercise of an Option shall be made in cash or, if the Stock
Incentive Agreement provides, by delivery to the Company of a number of Shares
which have been owned by the holder for at least six (6)
<PAGE>
- 6 -
months prior to the date of exercise having an aggregate Fair Market Value of
not less than the product of the Exercise Price multiplied by the number of
Shares the Participant intends to purchase upon exercise of the Option on the
date of delivery. In addition, the Stock Incentive Agreement may provide for
cashless exercise through a brokerage transaction following registration of the
Company's equity securities under Section 12 of the Securities Exchange Act of
1934. Except as provided in subparagraph (f) below, payment shall be made at the
time that the Option or any part thereof is exercised, and no Shares shall be
issued or delivered upon exercise of an Option until full payment has been made
by the Participant. The holder of an Option, as such, shall have none of the
rights of a stockholder.
Notwithstanding the above, and in the sole discretion of the
Committee, an Option may be exercised as to a portion or all (as determined by
the Committee) of the number of Shares specified in the Stock Incentive
Agreement by delivery to the Company of a promissory note, such promissory note
to be executed by the Participant and which shall include, with such other terms
and conditions as the Committee shall determine, provisions in a form approved
by the Committee under which: (i) the balance of the aggregate purchase price
shall be payable in equal installments over such period and shall bear interest
at such rate (which shall not be less than the prime bank loan rate as
determined by the Committee) as the Committee shall approve, and (ii) the
Participant shall be personally liable for payment of the unpaid principal
balance and all accrued but unpaid interest.
(d) CONDITIONS TO EXERCISE OF AN OPTION. Each Option granted
under the Plan shall be exercisable at such time or times, or upon the
occurrence of such event or events, and in such amounts, as the Committee shall
specify in the Stock Incentive Agreement; provided, however, that subsequent to
the grant of an Option, the Committee, at any time before complete termination
of such Option, may accelerate the time or times at which such Option may be
exercised in whole or in part.
(e) NONTRANSFERABILITY OF OPTIONS. Except as provided in
subparagraph (f) below, an Option shall not be transferable or ASSIGNABLE except
by will or by the laws of descent and distribution and shall be exercisable,
during the Participant's lifetime, only by the Participant, or in the event of
the disability of the Participant, by the legal representative of the
Participant.
(f) SPECIAL PROVISIONS FOR CERTAIN SUBSTITUTE OPTIONS.
Notwithstanding anything to the contrary in this Section, any Option in
substitution for a stock option previously issued by another entity, which
substitution occurs in connection with a transaction to which Code Section
424(a) is applicable, may provide for an exercise price computed in accordance
with such Code Section and the regulations thereunder and may contain such other
terms and conditions as the Committee may prescribe to cause such substitute
Option to contain as nearly as possible the same terms and conditions (including
the applicable vesting and termination to in termination provisions) as those
contained in the previously issued stock option being replaced thereby.
7.3 TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS. A Stock
Appreciation Right may be granted in connection with all or any portion of a
previously or contemporaneously granted Option or not in connection with an
Option. A Stock Appreciation Right shall entitle the Participant to receive upon
exercise or payment the excess of: (I) the Fair Market Value of a
<PAGE>
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specified number of Shares at the time of exercise, over (II) a specified price
which shall be not less than the Exercise Price for that number of Shares in the
case of a Stock Appreciation Right granted in connection with a previously or
contemporaneously granted Option., or in the case of any other Stock
Appreciation Right not less than one hundred percent (100%) of the Fair Market
Value of that number of Shares at the time the Stock Appreciation Right was
granted. A Stock Appreciation Right granted in connection with an Option may
only be exercised to the extent that the related Option has not been exercised.
The exercise of a Stock Appreciation Right shall result in a pro rata surrender
of the related Option to the extent the Stock Appreciation Right has been
exercised.
(a) PAYMENT. Upon exercise or payment of a Stock Appreciation
Right, the Company shall pay to the Participant the appreciation in cash or
Shares (at the aggregate Fair Market Value on the date of payment or exercise)
as provided in the Stock Incentive Agreement or, in the absence of such
provision, as the Committee may determine.
(b) CONDITIONS TO EXERCISE. Each Stock Appreciation Right
granted under the Plan shall be exercisable at such time or times, or upon the
occurrence of such event or events, and in such amounts, as the Committee shall
specify in the Stock Incentive Agreement; provided, however, that subsequent to
the grant of a Stock Appreciation Right, the Committee, at any time before
complete termination of such Stock Appreciation Right, may accelerate the time
or times at which such Stock Appreciation Right may be exercised in whole or in
part.
(c) NONTRANSFERABILITY OF STOCK APPRECIATION RIGHT. A Stock
Appreciation Right shall not be transferable or assignable except by will or by
the laws of descent and distribution and shall be exercisable, during the
Participant's lifetime, only by the Participant, or in the event of the
disability of the Participant, by the legal representative of the Participant.
7.4 TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS. Shares awarded
pursuant to Restricted Stock Awards shall be subject to restrictions for periods
determined by the Committee. The Committee shall have the power to permit, in
its discretion, an acceleration of the expiration of the applicable restriction
period with respect to any part or all of the Shares awarded to a Participant.
The Committee may require a cash payment from the Participant in an amount no
greater than the aggregate Fair Market Value of the Shares awarded determined at
the date of grant in exchange for the grant of a Restricted Stock Award or may
grant a Restricted Stock Award without the requirement of a cash payment.
SECTION 8.
SURRENDER OF OPTIONS
8.1 GENERAL RULE. The Committee, acting in its absolute discretion, may
incorporate a provision in a Stock Incentive Agreement to allow an Employee or
Key Person to surrender his or Option in whole or in part in lieu of the
exercise in whole or in part of that Option on any date that:
(a) the Fair Market Value of the Shares subject to such Option
exceeds Exercise Price for such Shares, and
<PAGE>
- 8 -
(b) the Option to purchase such Shares is otherwise
exercisable.
8.2 PROCEDURE. The surrender of an Option in whole or in part shall be
effected by the delivery of the Stock Incentive Agreement to the Committee,
together with a statement signed by the Participant which specifies the number
of Shares ("Surrendered Shares") as to which the Participant surrenders his or
her Option and how he or she desires payment be made for such Surrendered
Shares.
8.3 PAYMENT. A Participant in exchange for his or her Surrendered
Shares shall receive a payment in cash or in Shares, or in a combination of cash
and Shares, equal in amount on the date such surrender is effected to the excess
of the Fair Market Value of the Surrendered Shares on such date over the
Exercise Price for the Surrendered Shares. The Committee, acting in its absolute
discretion, can approve or disapprove. a Participant's request for payment in
whole or in part in cash and can make that payment in cash or in such
combination of cash and Shares as the Committee deems appropriate. A request for
payment only in Shares shall be approved and made in Shares to the extent
payment can be made in whole shares of Shares and (at the Committee's
discretion) in cash in lieu of any fractional Shares.
8.4 RESTRICTIONS. Any Stock Incentive Agreement which incorporates a
provision to allow a Participant to surrender his or her Option in whole or in
part also shall incorporate such additional restrictions on the exercise or
surrender of such Option as the Committee deems necessary to satisfy the
conditions to the exemption under Rule 16b-3 (or any successor exemption) to
Section 16(b) of the Exchange Act.
SECTION 9.
SECURITIES REGULATION
Each Stock Incentive Agreement may provide that, upon the receipt of
Shares as a result of he surrender or exercise of a Stock Incentive, the
Participant shall, if so requested by the Company, hold such Shares for
investment and not with a view of resale or distribution to the public and, if
so requested by the Company. shall deliver to the Company a written statement
satisfactory to the Company to that effect. Each Stock Incentive Agreement may
also provide that, if so requested by the Company, the Participant shall make a
written representation to the Company that he or she will not sell or offer to
sell any of such Shares unless a registration statement shall be in effect with
respect to such Shares under the Securities Act of 1933, as amended ("1933
Act"), and any applicable state securities law or, unless he or she shall have
furnished to the Company an opinion, in form and substance satisfactory to the
Company, of legal counsel acceptable to the Company, that such registration is
not required. Certificates representing the Shares transferred upon the exercise
or surrender of a Stock Incentive granted under this Plan may at the discretion
of the Company bear a legend to the effect that such Shares have not been
registered under the 1933 Act or any applicable state securities law and that
such Shares may not be sold or offered for sale in the absence of an effective
registration statement as to such Shares under the 1933 Act and any applicable
state securities law or an opinion, in form and substance satisfactory to the
Company, of legal counsel acceptable to he Company, that such registration is
not required.
<PAGE>
- 9 -
SECTION 10.
LIFE OF PLAN
No Stock Incentive shall be GRANTED under this Plan on or after the
earlier of.
(a) the tenth (10th) anniversary of the effective date of this
Plan (as determined under Section 4 of this Plan), in which event this Plan
otherwise thereafter shall continue in effect until all outstanding Stock
Incentives have been surrendered or exercised in full or no longer are
exercisable, or
(b) the date on which all of the Shares reserved under
Section 3 of this Plan have (as a result of the surrender or exercise of Stock
Incentives granted under this Plan) been issued or no longer are available for
use under this Plan, in which event this Plan also shall terminate on such date.
SECTION 11.
ADJUSTMENT
The number of Shares reserved under Section 3 of this Plan, and the
number of Shares subject to Stock Incentives granted under this Plan, and the
Exercise Price of any Options, shall be adjusted by the Committee in an
equitable manner to reflect any change in the capitalization of the Company,
including, but not limited to, such changes as stock dividends or stock splits.
Furthermore, the Committee shall have the right to adjust (in a manner which
satisfies the requirements of Code Section 424(a)) the number of Shares reserved
under Section 3, and the number of Shares subject to Stock Incentives granted
under this Plan, and the Exercise Price of any Options in the event of any
corporate transaction described in Code Section 424(a) which provides for the
substitution or assumption of such Stock Incentives. If any adjustment under
this Section creates a fractional Share or a right to acquire a fractional
Share, such fractional Share shall be disregarded, and the number of Shares
reserved under this Plan and the number subject to any Stock Incentives granted
under this Plan shall be the next lower number of Shares, rounding all fractions
downward. An adjustment made under this Section by the Committee shall be
conclusive and binding on all affected persons and, further, shall not
constitute an increase in the number of Shares reserved under Section 3.
SECTION 12.
SALE OR MERGER OF THE COMPANY
If the Company agrees to sell substantially all of its assets for cash
or property, or for a combination of cash and property, or agrees to any merger,
consolidation, reorganization, division or other transaction in which Shares are
converted into another security or into the right to receive securities or
property and such agreement does not provide for the assumption or substitution
of the Stock Incentives granted under this Plan, each Stock Incentive at the
direction and discretion of the Committee, or as is otherwise provided in the
Stock Incentive Agreements, may be canceled unilaterally by the Company in
exchange for the whole Shares (or, subject to satisfying the conditions to the
exemption under Rule 16b-3 or any successor exemption to Section 16(b) of the
Exchange Act, for the whole Shares and the cash in lieu of a fractional Share)
which
<PAGE>
- 10 -
each Participant otherwise would receive if he or she had the right to surrender
or exercise his or her outstanding Stock Incentive in full and he or she
exercised that right exclusively for Shares on a date fixed by the Committee
which comes before such sale or other corporate transaction.
SECTION 13.
AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent
that the Board deems necessary or appropriate; provided, however, no such
amendment shall be made absent the approval of the shareholders of the Company:
(a) to increase the number of Shares reserved under Section 3, except as set
forth in Section 11, (b) to extend the maximum life of the Plan under Section 10
or the maximum exercise period under Section 7, (c) to decrease the minimum
Exercise Price under Section 7, or (d) to change the designation of Employees or
Key Persons eligible for Stock Incentives under Section 6. The Board also may
suspend the granting of Stock Incentives under this Plan at any time and may
terminate this Plan at any time, provided, however, the Company shall not have
the right to modify, amend or cancel any Stock Incentive granted before such
suspension or termination unless: (I) the Participant consents in writing to
such modification, amendment or cancellation, or (II) there is a dissolution or
liquidation of the Company or a transaction described in Section 11 or Section
12.
SECTION 14.
MISCELLANEOUS
14.1 SHAREHOLDER RIGHTS. No Participant shall have any rights as a
shareholder of the Company as a result of the grant of a Stock Incentive to him
or to her under this Plan or his or her exercise or surrender of such Stock
Incentive pending the actual delivery of Shares subject to such Stock Incentive
to such Participant.
14.2 NO GUARANTEE OF CONTINUED RELATIONSHIP. The grant of a Stock
Incentive to a Participant under this Plan shall not constitute a contract of
employment and shall not confer on a Participant any rights upon his or her
termination of employment or relationship with the Company in addition to those
rights, if any, expressly set forth in the Stock Incentive Agreement which
evidences his or her Stock Incentive.
14.3 WITHHOLDING. The exercise or surrender of any Stock Incentive
granted under this Plan shall constitute a Participant's full and complete
consent to whatever action the Committee directs to satisfy the federal and
state tax withholding requirements, if any, which the Committee in its
discretion deems applicable to such exercise or surrender.
14.4 TRANSFER. The transfer of an Employee between or among the
Company, a Subsidiary or a Parent shall not be treated as a termination of his
or her employment under this Plan.
14.5 CONSTRUCTION. This Plan shall be construed under the laws of the
State of Georgia.
EXHIBIT 10.07
CONFIDENTIAL
================================================================================
VALUE-ADDED LINK AGREEMENT
by and between
ALTAVISTA EQUIPMENT CORPORATION
and
YUPI INTERNET INC.
================================================================================
- --------------------------------------------------------------------------------
Date: July 20, 1999
- --------------------------------------------------------------------------------
CONFIDENTIAL
<PAGE>
- 2 -
ALTAVISTA VALUE ADDED LINK AGREEMENT
THIS ALTAVISTA VALUE ADDED LINK AGREEMENT (this "AGREEMENT") is entered into as
of the (the "JULY 20, 1999") by and between YUPI INTERNET, INC. "Participant')
and the ALTAVISTA COMPANY ("AltaVista").
RECITALS
Yupi operates a service on the World Wide Web that provides information to its
users via the Yupi web Properties (as hereinafter defined). AltaVista has
developed and operates the AltaVista/Trademark/ full-text World Wide Web search
engine and the AltaVista/Trademark/ index, which can currently be accessed
through http:Hwww.altavista.com ("ALTAVISTA").
Yupi desires to incorporate and feature AltaVista as an available search engine
for its property or properties accessible on the World Wide Web. Yupi and
AltaVista desire to establish a Value -Added Link between AltaVista and such
properties that will enable a Yupi visitor to conduct World Wide Web searches
through AltaVista while remaining on the Yupi Properties.
Yupi and AltaVista agree that the following terms and conditions shall govern
the establishment, structure and operation of such a value-added Link.
1. DEFINITIONS AND TERMS
DEFINITIONS. For purposes of this Agreement, in addition to the terms defined
elsewhere in this Agreement, the following terms shall have the meanings
ascribed to them below:
1.1 "ALTAVISTA INDEX" means the World Wide Web full-text index compiled by
AltaVista using the AltaVista Search Engine, as the same is updated
from time to time by the AltaVista Search Engine and maintained on
AltaVista servers.
1.2 "YUPI PROPERTIES" means any Yupi property or properties specified in
EXHIBIT "A", including any successor properties, or additional
affiliate sites, and strategic alliance partners' sites (as long as the
partner's sites are hosted in servers owned, leased or operated by
Yupi) that are accessible over the World Wide Web by a user and that
are incorporated into the Yupi business from time to time.
1.3 "INTELLECTUAL PROPERTY RIGHTS" means trade secrets, patents,
copyrights, trademarks, trade dress, know-how and similar rights of any
type under the laws of any governmental authority including, without
limitation, all applications and registrations relating to any of the
foregoing.
1.4 "INTERFACE SPECIFICATIONS" means the detailed specifications set forth
in EXHIBIT "B" that when implemented will enable the value-added Link
(as defined below).
<PAGE>
- 3 -
1.5 "RESULTS PAGE" means each page on any of the Yupi Properties that
contains search responses, if any, to an AltaVista search query.
1.6 "SEARCH ENGINE" means a program that crawls and indexes the text of the
World Wide Web and/or Usenet newsgroups and which index can be queried
using Boolean logic or similar query methods.
1.7 "USER" means a person who accesses any of the Yupi Proper-ties.
1.8 "VALUE-ADDED LINK" OR "VAL" shall operate as described in Section 2.
1.9 "WORLD WIDE WEB" OR "WWW" means the Internet-based distributed
information service that utilizes the hypertext transfer protocol
(http) or any successor protocol.
2. VALUE-ADDED LINK.
OPERATION OF VAL. The VAL will generally operate as follows:
2.1 The user interface of each Yupi Property that offers search
functionality to Users will be designed so that it identifies AltaVista
as an available search engine (as set forth in Section 3, below) and
gives the User the option of using AltaVista to conduct a search;
2.2 When Yupi initiates a query to AltaVista, using the VAL interface, the
query will be transmitted to the AltaVista Index, where it will be
processed, and the results (if any) will be sent using the VAL
interface to the Yupi Property;
2.3 Yupi will format the results from the AltaVista search in a Results
Page and will be able to incorporate advertising and other messaging
into this Results Page. Each Results Page will contain an attribution
to AltaVista; and an html link to the AltaVista site. This attribution
will be placed above the fold.
2.4 The search process will not remove the User from the Yupi Properties on
which the User initiated the search.
3. RESPONSIBILITIES AND RIGHTS OF THE PARTIES.
3.1 INTERFACE SPECIFICATIONS. Promptly following the Effective Date,
AltaVista shall provide to Yupi the Interface Specifications to allow
Yupi to establish the VAL with the AltaVista Index for full text
search.
3.2 ENGINEERING CHANGES. AltaVista hereby grants Yupi a non-exclusive
license to utilize the Interface Specifications solely for the purpose
of implementing engineering changes in Yupis source code or object code
necessary to install and support the VAL.
<PAGE>
- 4 -
3.3 ALTAVISTA AS AVAILABLE SEARCH ENGINE. Yupi is permitted under this
Agreement to establish AltaVista as an available search engine for Yupi
Properties. In this regard, Yupi shall, at a minimum, include a
reference, to be provided to Yupi by AltaVista, in accordance with
EXHIBIT "C," to the AltaVista search functionality, E.G., "Powered by
AltaVista," prominently on each page that references AltaVista or makes
use of its WWW search functionality of each of the Yupi Properties,
which prominence and size shall be commensurate with the prominence
provided to the search engine service within the context of a web page.
If Yupi does not implement the VAL and does not establish AltaVista as
an available search engine for its Properties, Yupi shall have no right
to use the AltaVista name or trademarks pursuant to the license granted
in Section 6 herein.
3.4 INTERFACE DESIGN AND RESULTS PAGES. Yupi shall use the mutually agreed
upon design set forth in EXHIBIT "C" for each user interface from which
the VAL can be accessed by Yupi users and the related search query
page(s). Upon written notice to Yupi, AltaVista may from time to time
modify such attribution or request that it be removed and Yupi shall
promptly implement all such modifications, or remove such attributions,
as the case may be. Yupi shall ensure that the user interface provides
Users with access to the AltaVista web pages which contain all legal
notices and disclaimers provided by AltaVista. Yupi shall have the
right to translate any information of the interface, search results,
and other result or legal notice information relating to this Agreement
to conform it to Yupi's user base.
3.5 SUPPORT. Yupi shall be solely responsible for providing support to Yupi
`s affiliates and users. AltaVista shall provide all support necessary
to install and maintain the VAL, to assure reasonably uninterrupted
availability of the AltaVista search engine and to provide timely
results to Yupi Users using AltaVista to conduct a search.
4. PAYMENT.
4.1 PAYMENT SCHEDULE. In consideration for the VAL to the AltaVista Index,
each calendar month during the term of this Agreement Yupi shall owe
AltaVista the applicable CPM rate for every [CONFIDENTIAL TREATMENT
REQUESTED]/*/ viewed by Yupi Users in response to AltaVista queries
from the Yupi Properties. The parties reserve the right to negotiate a
new CPM rate and apply a new rate for each renewal term.
4.2 VAL PRICING
Yupi.com will pay AltaVista an amount equal to $ [CONFIDENTIAL TREATMENT
REQUESTED]/*/ per quarter or an amount based on the following CPM chart -
whichever amount is the greater:
Monthly number of page views Applicable CPM*
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 5 -
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
[CONFIDENTIAL TREATMENT REQUESTED]/*/ $ [CONFIDENTIAL TREATMENT REQUESTED]/*/
4.3 In addition there is an AltaVista Support fee of [CONFIDENTIAL
TREATMENT REQUESTED]/*/ per AltaVista quarter.
4.4 PAYMENTS AND REPORTS. Yupi shall pay AltaVista the applicable amount
for the monthly traffic multiplied by the corresponding CPM rate above
for a given month based on the number of Results Pages viewed by Yupi
Users for that month. For each month and accompanying each payment,
Yupi shall prepare and provide to AltaVista a report setting forth in
reasonable detail the number of Results Pages viewed for the month with
such supporting detail as AltaVista may reasonably request to confirm
the accuracy of such number.
4.5 MANNER OF PAYMENT. All payments due to AltaVista by Yupi hereunder
shall be payable in U.S. Dollars by check or wire transfer to such U.S.
bank account as AltaVista shall notify Yupi in writing no later than
five (5) days before the date on which such payment is due.
4.6 LATE FEE. If after receipt of notice and ten (10) days opportunity to
cure, Yupi fails to pay amounts due and payable, Yupi shall pay
AltaVista a late payment charge of one and one-half percent (1.5%) per
month, but not in excess of the lawful maximum, on any past due
balance.
5. PROPRIETARY RIGHTS.
5.1 ALTAVISTA. As between AltaVista and Yupi, AltaVista shall own all
right, title and interest in and to AltaVista, including but not
limited to the Interface Specifications, and the Intellectual Property
Rights embodied therein. Except as expressly granted in this Agreement,
nothing herein grants or shall be construed as granting Yupi any
licenses or other rights, whether express or implied or otherwise, in,
to or under AltaVista, including but not limited to the Interface
Specifications, or any Intellectual Property Rights embodied therein.
5.2 YUPI. Subject to AltaVista's underlying ownership interests set forth
in Section 5. 1, as between Yupi and AltaVista, Yupi shall own all
right, title and interest in and to the Yupi Properties.
6. TRADEMARKS.
6.1 ALTAVISTA MARKS. AltaVista hereby grants to Yupi a non-exclusive and
limited license to use the AltaVista tradenames, logos and other
AltaVista trademarks and service marks as set forth on EXHIBIT "F-I"
hereto (the "ALTA VISTA MARKS") solely in connection with Yupi's
advertising, marketing, promotion, display and distribution of the VAL.
It is understood that the use of the AltaVista Marks in the Yupi
promotional materials is subject to approval, which shall not be
unreasonably withheld, and any promotional
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 6 -
materials which are delivered to AltaVista with no response within 10
days of receipt shall be deemed approved. Any materials previously
approved by AltaVista or any portions thereof may be continued to be
used by Yupi without substantially altering the format, unless Yupi
receives written notice to the contrary. Yupi's use shall be in
accordance with AltaVista's policies regarding advertising and
trademark usage as established from time to time by AltaVista. Yupi
shall have no right to use the AltaVista Marks for any purpose without
AltaVista's prior written consent, other than in connection with its
advertising, marketing, promotion, display and distribution of the VAL.
Yupi agrees to cooperate with AltaVista in facilitating AltaVista's
monitoring and control of the nature and quality of products and
services bearing the AltaVista Marks and to supply AltaVista with
specimens of Yupi's use of the AltaVista Marks upon request. In the
event that AltaVista determines that Yupi's use of the AltaVista Marks,
or the service in connection which such Marks are used, is inconsistent
with AltaVista's quality standards, then upon AltaVista's written
request, Yupi shall within a reasonable period thereafter conform such
use or service to AltaVista's standards. If Yupi fails to conform such
use or service, AltaVista shall have the right to suspend such use of
the AltaVista Marks.
6.2 YUPI MARKS. Yupi hereby grants to AltaVista a non-exclusive license to
use the Yupi tradenames, logos and other Yupi trademarks and service
marks as set forth on Exhibit "F-2" hereto (the "Participant" Marks) in
connection with AltaVista's advertising, marketing, promotion and
distribution of AltaVista in general, including but not limited to the
VAL. AltaVista use shall be in accordance with Participants policies
regarding advertising and trademark usage as established from time to
time by Yupi. AltaVista agrees to cooperate with Yupi in facilitating
Yupi's monitoring and control of the nature and quality of products and
services bearing the Yupi Marks, and to supply Yupi with specimens of
AltaVista's use of the Yupi Marks upon request. In the event that Yupi
determines that AltaVista's use of the Yupi Marks is inconsistent with
Yupi's quality standards, then upon Yupi's written request, AltaVista
shall within a reasonable period thereafter conform such use or
services to Yupi's standards. If AltaVista fails to conform such use or
services, Yupi shall have the right to suspend such use of the Yupi's
Marks.
6.3 YUPI ACKNOWLEDGMENT. Yupi acknowledges that the AltaVista Marks are
trademarks and service marks of AltaVista. Yupi understands and agrees
that the use of any AltaVista Mark in connection with this Agreement
shall not create any right, title or interest, in or to the use of the
AltaVista Mark and that all such use and goodwill associated with the
AltaVista Mark will inure to the benefit of AltaVista.
6.4 ALTAVISTA ACKNOWLEDGMENT. AltaVista acknowledges that the Yupi Marks
are trademarks and service marks of Yupi. AltaVista understands and
agrees that the use of any Yupi Mark in connection with this Agreement
shall not create any right, title or interest, in or to the use of the
Yupi Mark and that all such use and goodwill associated with the Yupi
Mark will inure to the benefit of Yupi.
7. CONFIDENTIALITY.
<PAGE>
- 7 -
7.1 THE INTERFACE SPECIFICATIONS AND THE YUPI TRAFFIC REPORTS. Yupi hereby
agrees to maintain in confidence the Interface Specifications and any
portions thereof, and not to use the Interface Specifications for any
purpose other than the purposes specified in this Agreement. Yupi
agrees to disclose the Interface Specifications only to those employees
with a need to know such information for the purposes specified in this
Agreement and not to disclose the Interface Specifications to any third
party. Yupi agrees not to copy the Interface Specifications, except as
reasonably required to accomplish the purposes of this Agreement. Upon
expiration or termination, Yupi's right to use the Interface
Specification, as granted in this Agreement, shall immediately
terminate and Yupi shall return promptly to AltaVista or destroy, at
AltaVista's option, all materials that disclose the Interface
Specification. AltaVista hereby agrees to maintain in confidence the
traffic, monthly and any other reports provided by Yupi to AltaVista
("Reports") or any portions thereof, and not to use the Reports for any
purpose other than the purposes specified in this Agreement. AltaVista
agrees to disclose the Reports only to those employees with a need to
know such information for the purposes specified in this Agreement and
not to disclose the Reports to any third party unless is on an
aggregated basis without specifically identifying the individual
information of Yupi. These are all electronic reports that do not
identify a specific partner. Upon expiration or termination,
AltaVista's right to use the Reports, as granted in this Agreement,
shall immediately terminate and AltaVista shall return promptly to Yupi
or destroy, at Yupi's option, all materials that disclose the Reports
other than records needed for accounting purposes. The invoice
reporting will be maintained in AltaVista records for the required time
under accounting and SEC regulations. The restrictions set forth in
this Section do not apply to any information that is or becomes
generally available to the public or any information independently
developed or properly obtained from an independent source.
7.2 OTHER CONFIDENTIAL INFORMATION. Except, as set forth in Section 7.1
above, nothing in this Agreement shall be deemed to impose any express
or implied confidentiality restrictions or obligations on either party.
In the event that either party wishes to disclose confidential
information (other than the Interface Specifications as specified in
Section 6.1 herein) to the other party, that party shall notify the
other of its desire to do so and specify the information to be
disclosed. In the event that the other party wishes to receive such
information, the parties shall enter a separately executed
nondisclosure agreement.
8 DISCLAIMER OF WARRANTIES.
Yupi hereby acknowledges and agrees that the VAL and access to the AltaVista
index are being licensed to Yupi "as is, with all faults," and that AltaVista
makes no representations or warranties, express or implied, as to the
usefulness, accuracy, completeness, feasibility, reliability or effectiveness of
the VAL, the AltaVista search engine or the AltaVista index, or that the VAL or
the AltaVista index will meet the objectives or needs of Yupi or any third
party, that the operation of the VAL or the AltaVista index will be
uninterrupted or effort-free, or that defects in the VAL or any AltaVista index
have been or will be corrected. In particular, and without limiting the
<PAGE>
- 8 -
foregoing, AltaVista makes no representations as to the completeness of search
results obtained by using the AltaVista index. Without limiting the foregoing,
AltaVista hereby disclaims all warranties of merchantability and fitness for a
particular purpose in connection with the VAL and the AltaVista index. In no
event shall AltaVista be liable to Yupi for any failure, disruption, downtime,
interruption, miscalculation, incorrect linkage, delay, inaccuracy or other
nonperformance of the VAL or the AltaVista index.
9. LIMITATION OF LIABILITY.
In no event shall a party to this agreement be liable for any special, indirect,
incidental or consequential damages, including, without limitation, for lost
profits, in any way arising out of or relating to this agreement, even in the
event such party has been advised as to the possibility of such damages.
10. YUPI REPRESENTATIONS AND WARRANTIES.
10.1 Yupi hereby represents and warrants to AltaVista that as of the
Effective Date:
(a) Yupi has the full corporate right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder;
(b) The execution of this Agreement by Yupi, and the performance by
Yupi of its obligations and duties hereunder, do not and will not violate any
agreement to which Yupi is a party or by which it is otherwise bound;
(c) Yupi acknowledges that AltaVista makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
10.2 AltaVista hereby represents and warrants to Yupi that as of the
Effective Date
(a) AltaVista has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder;
(b) The execution of this Agreement by AltaVista, and the performance
by AltaVista of its obligations and duties hereunder, do not and will not
violate any agreement to which AltaVista is a party or by which it is otherwise
bound;
(c) AltaVista acknowledges that Yupi makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
11. TERM AND TERMINATION.
<PAGE>
- 9 -
11.1 TERM. This Agreement shall become effective on the Effective Date and
shall continue in full force and effect until two year after the Effective Date,
unless earlier terminated in accordance with this Agreement. Thereafter, this
Agreement will automatically renew on a year-to-year basis unless either party
objects to such renewal in writing within thirty (30) days prior to the
applicable renewal date
11.2 EVENTS OF TERMINATION. This Agreement shall be subject to termination
upon the occurrence of the following events:
(a) if either party hereto defaults on any of its material obligations,
representations or warranties under this Agreement, the non-defaulting party
shall have the right, exercisable in its sole discretion, to terminate this
Agreement by written notice describing with reasonable specificity the nature of
the default and requesting that it be cured, unless within thirty (30) calendar
days after written notice of such default the defaulting party remedies the
default;
(b) if (a) either party files a petition for bankruptcy or is
adjudicated a bankrupt; (b) a petition in bankruptcy is filed against either
party; (c) either party makes an assignment for the benefit of its creditors or
an arrangement for its creditors pursuant to any bankruptcy law; (d) either
party discontinues its business; or (e) a receiver is appointed for either party
or its business, then the other party shall have the right to terminate this
agreement immediately upon written notice.
(c) if Yupi or AltaVista elect to terminate the agreement by giving the
other party at least 30 days prior written notice upon the occurrence of a
Change of Control. For purposes of this Agreement, "Change of Control" shall be
defined as a transfer, sale, conveyance or assignment of more than 50% of the
shares, voting rights, beneficial interest or control of a party.
11.3 EFFECT OF TERMINATION.
(a) Termination of this Agreement by either party hereto shall not act
as a waiver of any breach of this Agreement and shall not act as a release of
either party hereto from any liability for breach of such party's obligations
under this Agreement.
(b) Within forty-five (45) calendar days of the expiration or
termination of this Agreement, the parties shall pay to the other party all
sums, if any, due and owing as of the date of expiration or termination.
11.4 SURVIVAL. The respective rights and obligations of Alta Vista and Yupi
under the provisions of Sections 5, 6.3, 6.4, 7, 8, 9, 10, 11, and 12 hereof
shall survive expiration or termination of this Agreement.
12. MISCELLANEOUS.
<PAGE>
- 10 -
12.1 NO JOINT VENTURE. The sole relationship between the parties shall be
that of licensor and licensee. The parties are independent contractors and
neither is the agent of the other. Each party shall be solely responsible for
the actions of all their respective employees, agents and representatives.
12.2 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Florida, without regard to the
principles of conflicts of laws, and with the same force and effect as if fully
executed and performed therein, and the laws of the United States of America.
12.3 REMEDIES CUMULATIVE. Except as otherwise expressly specified herein,
the rights and remedies granted to each party under this Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies
that such party may possess at law or in equity.
12.4 AMENDMENT OR MODIFICATION. This Agreement may not be amended, modified
or supplemented by the parties in any manner, except by an instrument in writing
signed on behalf of each of the parties by a duly authorized officer or
representative.
12.5 NO ASSIGNMENT. Neither party shall transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without the prior written consent of the other party. Any
purported transfer, assignment or delegation by either party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
either party shall have the right to assign this Agreement and the obligations
hereunder to any successor of such party by way of merger, consolidation,
reorganization or the acquisition of substantially all of the business and
assets of the assigning party relating to the Agreement.
12.6 NOTICES. All notices, requests, demands or other communications under
this Agreement shall be in writing and may be sent by mail, facsimile, or an
authorized electronic address to the addressee and offices specified below.
Either party may change its address for purposes hereof upon prior notice to the
other party. Notices hereunder shall be directed:
If to YUPI, to:
Oscar Coen, CEO
Yupi.com
830 Lincoln Road, 2nd floor
Miami Beach, FL 33139
With a copy to:
Ariel Bentata
Bentata Hoet & Associates
100 SE, 2nd St., 38th Floor
Miami, Florida 33131
<PAGE>
- 11 -
If to AltaVista, to:
Lauren Wojnarowski
Vice President
AltaVista Search Services
The AltaVista Company
1825 S. Grant St.
San Mateo, CA. 94402
12.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits attached
hereto) represents the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and/or contemporaneous agreements
and understandings, written or oral between the parties with respect to the
subject matter hereof.
12.8 WAIVER. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party shall be deemed, by any act
or omission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
12.9 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person other than the parties and the respective successors or assigns of the
parties, any rights, remedies, obligations or liabilities whatsoever.
12.10 SEVERABILITY. If the application of any provision or provisions of this
Agreement to any particular facts of circumstances shall be held to be invalid
or unenforceable by any court of competent jurisdiction, then: (i) the validity
and enforceability of such provision or provisions as applied to any other
particular facts or circumstances and the validity of other provisions of this
Agreement shall not in any way be affected or impaired thereby; and (ii) such
provision or provisions shall be reformed without further action by the parties
hereto and only to the extent necessary to make such provision or provisions
valid and enforceable when applied to such particular facts and circumstances.
12.11 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one and the same
instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it. For purposes hereof, a facsimile copy of this
Agreement, including the signature pages hereto, shall be deemed to be an
original. Notwithstanding the foregoing, the parties shall each deliver original
execution copies of this Agreement to one another as soon as practicable
following execution thereof.
IN WITNESS WHEREOF, the parties to this Agreement by their duly authorized
representatives have executed this Agreement as of the date first above written.
<PAGE>
- 12 -
FOR ALTAVISTA COMPANY FOR YUPI INTERNET, INC.:
By: /S/ KURT LOS By: /S/ OSCAR L. COEN
-------------------------- -----------------------------
Name: KURT LOS Name: OSCAR L. COEN
Title: Title: CEO
<PAGE>
EXHIBIT A
TO
VALUE-ADDED LINK AGREEMENT
DESCRIPTION OF YUPI PROPERTIES
WWW.YUPI.COM
WWW.CIUDADFUTURA.COM
WWW.AMARILLAS.COM
WWW.CHARLAS.COM
[SUBJECT TO INCLUSION OF
ADDITIONAL PROPERTIES AND/OR
ALTERATION TO SITES LISTED ABOVE]
<PAGE>
- 14 -
EXHIBIT "B"
TO
VALUE-ADDED LINK AGREEMENT
INTERFACE SPECIFICATIONS
[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 15 -
[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 16 -
[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 17 -
[CONFIDENTIAL TREATMENT REQUESTED]/*/
- --------------------
/*/[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- 18 -
EXHIBIT "C"
TO
VALUE-ADDED LINK AGREEMENT
FORM OF USER INTERFACE DESIGN
[contains picture of Yupi Internet Inc.'s homepage]
<PAGE>
- 19 -
EXHIBIT "D"
TO
VALUE-ADDED LINK AGREEMENT
FORM OF ALTAVISTA ATTRIBUTION
[picture of AltaVista Equipment Corporation's logo]
<PAGE>
- 20 -
EXHIBIT "F-1"
TO
VALUE-ADDED LINK AGREEMENT
ALTAVISTA TRADEMARK USAGE GUIDELINES
GUIDELINES FOR USE OF ALTAVISTA/Trademark/ LOGO AND WORD MARKS
SUMMARY
AltaVista's AltaVista/trademark/ marks are of great importance in helping the
company compete in the highly competitive computer industry. AltaVista's legal
rights in the marks can be defended only if they are consistently used correctly
in all forms of media. Therefore, it is critical that all licensees familiarize
themselves with and abide the following rules of trademark use.
ALTAVISTA TRADEMARK USAGE GUIDELINES
1. Trademarks must be used as adjectives, not nouns. Always follow the
mark with the common generic (dictionary name) for the product.
Correct: AltaVista Search, AltaVista Software
2. Always distinguish a trademark from surrounding text. Methods of
distinguishing a mark include printing it in CAPITALS, ITALICIZED
TEXT, using BOLD FACED TEXT, Initial Capitalization or by putting
mark in "quotation marks".
3. Never use the AltaVista trademark as a verb
4. Never use the AltaVista trademark in plural form.
5. Do not hyphenate or dissect the AltaVista trademark
Incorrect: Alta Vista
Incorrect: Alta-Vista
6. Do not combine the AltaVista mark with other trademarks or other
words to form new trademarks.
7. The graphic design of the AltaVista logo must be adhered to strictly.
Approved artwork must be used and the design cannot be altered in any
way. The AltaVista logo must stand alone. It cannot be combined with
other marks and cannot be used in text.
8. The trademark symbol. "TM", must appear on the upper right shoulder
of the AltaVista logo and AltaVista word mark on both the first use
of the mark and on the most prominent use of the mark.
9. This following phrase must be centered at the bottom of the AltaVista
Search results page: "AltaVista/trademark/ Search from
AltaVista/trademark/ Used under license."
10. From time to time during the Term, AltaVista may modify the written
guidelines for the size, typeface, colors and other graphic
characteristics of the AltaVista logo and word marks, which upon
delivery to YUPI shall be deemed to be incorporated into the
"Guidelines for use of AltaVista Logo and Word Mark" document under
this Agreement.
11. These guidelines may be modified at any time, by AltaVista upon
written notice to YUPI.
<PAGE>
- 21 -
AltaVista Logo Usage Guidelines
Complete artwork files are available on write-locked, read-only
electronic media. This artwork may not be edited or modified in any way
by YUPI.
Color Palettes
The AltaVista logos must be rendered in three colors for graphics arts
reproduction. The color palette is:
. AltaVista Dark Blue (Pantone 288C)
. AltaVista Medium Blue (Pantone 286C)
. AltaVista Ice Blue (Pantone 630C)
. OnSite Red (Pantone 1655)
. Search Gold (Pantone 604)
<PAGE>
- 22 -
EXHIBIT "F-2"
TO
VALUE-ADDED LINK AGREEMENT
YUPI TRADEMARK USAGE GUIDELINES
THE FOLLOWING LOGOS ARE THE ONLY LOGOS AND DESIGNS
BEARING THE "YUPI" TRADEMARK, WHICH MAY BE USED BY
ALTAVISTA IN ACCORDANCE WITH THIS AGREEMENT:
ATTACHED ON FOLLOWING PAGE
THE LOGO MUST BE USED IN ITS ENTIRETY AND MAY NOT BE
ALTERED, MODIFIED, REDUCED, IN WHOLE OR IN PART IN ANY
WAY. THE SYMBOL (C) MUST ALWAYS BE PART OF THE LOGO
EVERY REFERENCE TO THE WORD "YUPI" SHALL BE FOLLOWED BY A
"TM" SYMBOL.
EXHIBIT 21.01
Subsidiaries
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
- ------------------ -----------------------------
<S> <C>
Yupi Acquisitions Corp. Florida
Yupi Internet International, Inc. Florida
Flowtools E.U. Colombia
Yupi Internet de Argentina, S.R.L. Argentina
La Cosa Interactive, S.R.L. Argentina
Yupi Internet Colombia Ltda. Colombia
Proveduria de Servicios Para Red Bogota.com Ltda. Colombia
Servicios de Internet Yupi Chile Limitada Chile
Yupi Internet Mexico, S.A. de C.V. Mexico
Yupi Internet Peru, S.R.L. Peru
Yupi Internet Venezuela, S.R.L. Venezuela
Yupi Internet Espana, S.L. Spain
DeFoe Industrial Inc. British Virgin Islands
CiudadFutura Internet, S.L. Spain
Yupi Internet, S.R.L. de C.V. Mexico
</TABLE>
