EXHIBIT E
VOTING AGREEMENT, dated as of October 30, 2000 (this "Agreement"),
among IBERO-AMERICAN MEDIA PARTNERS II LTD., a Cayman Islands company ("IAMP"),
EL SITIO, INC., a British Virgin Islands international business company ("El
Sitio"), and the SHAREHOLDER NAMED ON THE SIGNATURE PAGE HEREOF (the
"Shareholder").
RECITALS
WHEREAS, pursuant to a Combination Agreement, dated as of the date
hereof (the "Combination Agreement"), among Holdco, Newhaven Overseas Corp.
("Newhaven"), Hicks, Muse, Tate & Furst, Inc. ("Hicks") and El Sitio, the
parties thereto have agreed that, among other things and subject to certain
terms and conditions, El Sitio will merge with and into a subsidiary of Holdco
(the "Merger");
WHEREAS, as of the date hereof, the Shareholder is the record and
beneficial owner of the number of El Sitio Common Shares (as defined in the
Combination Agreement) specified on the signature page hereof (such El Sitio
Common Shares, the "Existing Shares" and, together with any shares of El Sitio
Common Shares or other voting capital shares of El Sitio acquired after the date
hereof, whether upon the exercise of warrants, options, conversion of
convertible securities or otherwise, the "Shares"); and
WHEREAS, as a condition to entering into the Combination Agreement,
the parties thereto have requested that the Shareholder agree, and the
Shareholder has agreed, to enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, the parties hereto agree
as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. The Shareholder hereby agrees during the term
of this Agreement that it shall, and shall cause the holder of record on any
applicable record date to, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of shareholders of El Sitio, however
called, or in connection with any written consent of the holders of El Sitio
Common Shares, (i) if a meeting is held, appear at such meeting or otherwise
cause the Shares to be counted as present thereat for purposes of establishing a
quorum, and (ii) vote or consent (or cause to be voted or consented), in person
or by proxy, all Shares, and any other voting securities of El Sitio (whether
acquired heretofore or hereafter) that are beneficially owned or held of record
by the Shareholder or as to which the Shareholder has, directly or indirectly,
the right to vote or direct the voting, in favor of the approval and adoption of
the Combination Agreement, the Merger and the other transactions contemplated
thereby.
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1.2 Proxy. IAMP hereby agrees to grant to Mr. Roberto Vivo-Chaneton
and each other Shareholder agrees to grant to IAMP a proxy to vote the Shares as
indicated in Section 1.1 above if the Shareholder fails for any reason to vote
the Shares in accordance with Section 1.1. The Shareholder agrees that such a
proxy would be irrevocable and would be coupled with an interest and agrees that
it will take such further action or execute such other instruments as may be
necessary or desirable to effectuate the intent of such a proxy and hereby
revokes any proxy previously granted by it with respect to the Shares.
1.3 No Inconsistent Agreements. The Shareholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Combination
Agreement, the Shareholder (a) has not entered, and shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy or power of attorney
with respect to the Shares, in either case, which is inconsistent with the
Shareholder's obligations pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDER
The Shareholder hereby represents and warrants to the other parties
hereto as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. The
Shareholder has full power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Shareholder
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by the Shareholder and no other
actions or proceedings on the part of the Shareholder are necessary to authorize
the execution and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Shareholder, and, assuming this Agreement constitutes a valid
and binding obligation of the other parties hereto, constitutes a valid and
binding obligation of the Shareholder, enforceable against it in accordance with
its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
2.2 Shares. The Existing Shares are, and from the date hereof
through and on the Closing Date will be, owned beneficially and of record by the
Shareholder (subject to any dispositions of Shares permitted by Section 4.1(a)
hereof). As of the date hereof, the Existing Shares constitute all of the El
Sitio Common Shares owned of record or beneficially by the Shareholder. The
Shareholder has and will have sole voting power, sole power of disposition, sole
power to issue instructions with respect to the matters set forth in Article I
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of
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the Existing Shares, with no limitations, qualifications or restrictions on such
rights, subject to applicable federal securities laws and the terms of this
Agreement.
2.3 No Liens. The Existing Shares are held by the Shareholder, or by
a nominee or custodian for the exclusive benefit of the Shareholder, free and
clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OTHER PARTIES
Each party hereto represents and warrants to all other parties
hereto as follows:
3.1 Power: Binding Agreement. Such party has full power and
authority to execute and deliver this Agreement and to perform all of its
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by such party and constitutes a valid and binding
agreement of such party, enforceable against it in accordance with its terms,
except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
ARTICLE IV
OTHER COVENANTS
4.1 Further Agreements of the Shareholder.
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(a) The Shareholder hereby agrees, while this Agreement is in
effect, and except as contemplated hereby and by the Combination Agreement, not
to sell, transfer, pledge, encumber, assign or otherwise dispose of
(collectively, a "Transfer") or enforce or permit the execution of the
provisions of any redemption, share purchase or sale, recapitalization or other
similar agreement or enter into any contract, option or other arrangement or
understanding with respect to the offer for sale, sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of its Existing Shares, any
Shares acquired after the date hereof, any securities exercisable for or
convertible into El Sitio Common Shares, any other capital shares of El Sitio or
any interest in any of the foregoing with any Person.
(b) In the event of a share dividend or distribution, or any change
in El Sitio Common Shares by reason of any share dividend or distribution, or
any change in El Sitio Common Shares by reason of any share dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such share
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
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4.2 Acquisition Proposals. Without limitation on any of its other
obligations under this Agreement, the Shareholder hereby covenants and agrees
that neither it nor any of its Subsidiaries nor any of the officers and
directors of it or its Subsidiaries shall, and that it shall use its reasonable
best efforts to cause its and its Subsidiaries' employees, agents and
representatives (including any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) not to, directly or indirectly, (i)
initiate, solicit, encourage or knowingly facilitate any inquiries or the making
of any Acquisition Proposal (as defined in the Combination Agreement), (ii) have
any discussion with or provide any confidential information or data to any
person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal, or knowingly facilitate any effort or
attempt to make or implement an Acquisition Proposal, (iii) approve, vote in
favor of, consent to or recommend, or propose publicly to approve or recommend,
any Acquisition Proposal or (iv) approve, vote in favor of, consent to or
recommend, or propose to approve or recommend, or execute or enter into, any
letter of intent, agreement in principle, merger agreement, acquisition
agreement, option agreement or other similar agreement or propose publicly or
agree to do any of the foregoing. The Shareholder agrees that it will promptly
keep the other parties hereto informed of the status and terms of any such
proposals. The Shareholder further agrees that it will, and will cause its
officers, directors and representatives to, immediately cease and cause to be
terminated any activities, discussions or negotiations existing as of the date
of this Agreement with any parties conducted heretofore with respect to any
Acquisition Proposal and that it will use reasonable best efforts to promptly
inform its directors, officers, key employees, agents and representatives of the
obligations undertaken in this Section 4.2.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate and no party shall
have any rights or duties hereunder upon the earlier of (a) the Effective Time
or (b) termination of the Combination Agreement pursuant to Section 8.1 thereof.
Nothing in this Section 5.1 shall relieve or otherwise limit any party of
liability for breach of this Agreement. Upon any termination of this Agreement,
this Agreement shall thereupon become void and of no further force and effect,
and there shall be no liability in respect of this Agreement or of any
transactions contemplated hereby on the part of any party hereto or any of its
directors, officers, partners, members, shareholders, employees, agents,
advisors, representatives or affiliates; provided, however, that nothing herein
shall relieve any party from any liability for such party's breach of this
Agreement; and provided further that nothing in this Section 5.1 shall limit,
restrict, impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under any other contract or agreement, including,
without limitation, the Combination Agreement.
5.2 Further Assurances. From time to time, at any of the other
parties' request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary or appropriate to consummate the transactions contemplated
by this Agreement.
5.3 Acknowledgment. Each Shareholder and El Sitio understands and
acknowledges that Newhaven, Hicks and IAMP are entering into the Combination
Agreement in
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reliance upon such Shareholder's execution and delivery of this
Agreement. Each Shareholder, Newhaven, Hicks and IAMP understands and
acknowledges that El Sitio is entering into the Combination Agreement in
reliance upon such Shareholder's execution and delivery of this Agreement.
5.4 Noninterference. The Shareholder hereby agrees and covenants
that it shall not, directly or indirectly, take any action that would make any
representation or warranty contained herein untrue or incorrect or have the
effect of preventing or disabling the Shareholder from performing its
obligations under this Agreement.
5.6 Notices. Any and all notices to any party to this Agreement will
be delivered to the following addresses:
(a) If to IAMP:
Newhaven Overseas Corp.
c/o Finser Corporation
550 Biltmore Way
Coral Gable, Florida 33134
Attention: General Counsel
Fax No.: (305) 442-8088
with a copy (solely for information purposes) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich, Esq.
Andrew J. Nussbaum, Esq.
Fax No.: (212) 403-2000
with a copy (solely for information purposes) to:
Hicks, Muse, Tate & Furst, Incorporated
200 Crescent Court
Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stewart, Jr.
Fax No.: (214) 740-7313
with a copy (solely for information purposes) to:
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
Attention: Kevin O'Mara, Esq.
Fax No.: (212) 878-8375
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(c) If to El Sitio:
El Sitio, Inc.
Avenida Ingeniero Huergo 1167
C1107AOL Buenos Aires, Argentina
Attention: Chief Executive Officer
Fax No.: (011) 5411-4339-3800
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Glenn M. Reiter, Esq.
Alan M. Klein, Esq.
Fax No.: (212) 455-2502
or to such other address as any party shall have specified by notice in writing
to the other parties. All such notices, requests, demands and communications
shall be deemed to have been received on the date of personal delivery or
telecopy or on the third business day after the mailing thereof.
5.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by any
party and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
5.8 Governing Law. This Agreement shall be governed, and
construed in accordance with, the laws of the State of New York.
5.9 Submission to Jurisdiction; Waivers. Each of the parties hereto
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by any other party hereto or its successors or assigns may be brought
and determined in the U.S. federal district court for the Southern District of
New York, and each of the parties hereto hereby irrevocably submit with regard
to any such action or proceeding for itself and in respect to its property,
generally and unconditionally, to the exclusive jurisdiction of the aforesaid
courts. Each of the parties hereto hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement, (a) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
other than the failure to lawfully serve process, (b) that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise), (c) to the fullest extent permitted by applicable law, that (i) the
suit, action or proceeding in any such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper and (iii)
this
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Agreement, or the subject matter hereof, may not be enforced in or by such
courts and (d) any right to a trial by jury.
5.10 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
5.11 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity, including without limitation injunctive relief.
5.12 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof.
5.13 Defined Terms. Capitalized terms used but not defined herein
shall be used as defined in the Combination Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers or other authorized persons thereunto
duly authorized as of the date first written above.
IBERO-AMERICAN MEDIA PARTNERS II LTD.
By: -----------------------------------
Name:
Title:
By: -----------------------------------
Name:
Title:
EL SITIO, INC.
By: -----------------------------------
Name:
Title:
SHAREHOLDER*
By: ----------------- -------------------
Name: Name:
Title: Title:
* Name of Shareholder:_________________________
Number of El Sitio Common Shares:
(i) Beneficially Owned___________
(ii) Record Ownership___________
Address of Shareholder:
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Fax No.:_________________
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