Exhibit F
AGREEMENT
by and among
HAMPSTEAD MANAGEMENT COMPANY LTD.,
HICKS, MUSE, TATE & FURST LATIN AMERICA FUND, L.P.
HICKS, MUSE, TATE & FURST LATIN AMERICA PRIVATE FUND, L.P.
HMLA 1-SBS COINVESTORS, L.P.
CERTAIN NEW SITE INC. STOCKHOLDERS
and
NEW SITE INC.
Dated as of [______]
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AGREEMENT dated as of [________] (this "Agreement") by and among Hampstead
Management Company Ltd., a corporation organized under the laws of the British
Virgin Islands ("Hampstead"), Hicks, Muse, Tate & Furst Latin America Fund,
L.P., a Delaware limited partnership ("HM"), Hicks, Muse, Tate & Furst Latin
America Private Fund, L.P., a Delaware limited partnership ("HMPF"), HMLA 1-SBS
Coinvestors, L.P., a Delaware limited partnership ("HMC", and together with HM
and HMPF, "Hicks Muse"), certain shareholders of New Site Inc. listed on
Schedule A hereto (for purposes of Section 2.1, 2.2., 3.1, 4.3 and Article V)
(the "Founders"), Carlos Enrique Cisneros (for purposes of Sections 3.1 and 4.3
and Article V) and New Site Inc. (the "Company").
WHEREAS, certain of the parties hereto and certain other parties have
entered into a Combination Agreement, dated as of October 30, 2000 (the
"Combination Agreement") relating to a transaction involving the Company,
Newhaven Overseas Corp. and Hicks Muse and certain related matters;
WHEREAS, the Holders (as defined herein), the Founders and the Company
desire to set forth certain terms and conditions governing their relationship;
and
WHEREAS, it is a condition to the obligations of the Holders and the
Company to consummate the transactions contemplated by the Combination Agreement
that this Agreement be executed and delivered by the parties hereto.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Affiliate" shall have the meaning ascribed thereto in Rule 12b-2
promulgated under the U.S. Securities Exchange Act of 1934, as amended, and as
in effect on the date hereof.
"Articles of Association" shall mean the Amended and Restated Articles of
Association of the Company, as in effect as of the Closing.
"Beneficial Owner" shall mean, with respect to any security, a Person who
Beneficially Owns such security, and "Beneficial Ownership" shall have a
correlative meaning.
"Beneficially Own" shall mean, with respect to any security, having or
sharing the power to direct or control the voting or disposition of such
security.
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"CEC" shall mean Carlos Enrique Cisneros and the members of his immediate
family and their lineal descendants, and trusts or similar entities established
for the benefit of such Persons, who or which have become party hereto.
"Cisneros Family" shall mean Ricardo Cisneros or Gustavo Cisneros and the
members of their immediate families and their lineal descendants, and trusts or
other entities established primarily for the benefit of any of such Persons and
charities, and any entities controlled directly or indirectly by such Persons,
who or which have become party hereto, other than CEC, unless he agrees in
writing to be bound hereby to the same extent as any other Hampstead Holder.
"Company Common Shares" shall mean the common shares, par value U.S.$0.01
per share, of the Company.
"Corporate Affiliate" shall mean, with respect to any Person, any other
Person (other than a natural person) that is under common control with, or
controlled by, the first Person, for so long as such first Person remains in
such relationship. Any Corporate Affiliate of any member or members of the
Cisneros Family shall be deemed to be a Corporate Affiliate of each member of
the Cisneros Family.
"15% Event" shall mean, with respect to any Holder, any time at which the
aggregate Ownership Percentage of such Holder and its Corporate Affiliates is
less than 15% and any time thereafter (regardless of whether such Ownership
Percentage subsequently is returned to or above such level and regardless of the
cause of such event).
"5% Event" shall mean, with respect to any Holder, any time at which the
aggregate Ownership Percentage of such Holder and its Corporate Affiliates is
less than 5% and any time thereafter (regardless of whether such Ownership
Percentage subsequently is returned to or above such level and regardless of the
cause of such event).
"Hampstead Holder" shall mean, as of any date, Hampstead and any Corporate
Affiliate of Hampstead that owns Company Common Shares on that date and any
member of the Cisneros Family or Corporate Affiliate of any member of the
Cisneros Family who owns such shares and has agreed to be bound by the terms
hereof.
"Hicks Holder" shall mean, as of any date, any of the entities referred to
herein collectively as Hicks Muse and any Corporate Affiliate of any of such
entities that owns Company Common Shares on that date and has agreed to be bound
by the terms hereof.
"Holders" shall mean, as applicable, the Hampstead Holders and/or the Hicks
Holders.
"Marketable Securities" shall mean any securities that are traded on a
major internationally recognized exchange, the average daily volume over the
prior 20 trading days of which securities is at least equal to the average daily
volume of the Company Common Shares over the same period.
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"Memorandum of Association" shall mean the Amended and Restated Memorandum
of Association of the Company, as in effect as of the Closing.
"Ownership Percentage" shall mean, with respect to any Person, the
percentage of Company Common Shares then outstanding of which such Person is the
Beneficial Owner, reflecting, for purposes of calculating such percentage, (a)
any indirect interests in Company Common Shares (including through a direct or
indirect holding company), and (b) any securities held by such Person then
exercisable for or convertible into a direct or indirect beneficial interest in
Company Common Shares, provided that no two Persons shall be deemed to be the
Beneficial Owner of the same share or shares of Company Common Shares (or any
other security relevant in such calculation).
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, trust or other entity, or any government or
political subdivision or agency, department or instrumentality thereof.
"Subsidiaries" shall mean all the corporations or similar entities of which
the Company owns, directly or indirectly, the capital stock representing 50% or
more of the voting power or equity interest.
"Transfer" shall mean any sale, assignment, or other outright transfer of
Beneficial Ownership of any securities (including through a direct or indirect
holding company) and any pledge or hypothecation (other than a pledge or
hypothecation to or financing arrangement through a financial or investment
banking institution for bona fide indebtedness pursuant to which the pledgee
agrees to be subject to the terms of this Agreement to the same extent as the
transferee), hypothecation or similar deposit, including, without limitation, a
transaction the result of which is that entities not previously controlling such
Person have acquired voting control of such Person, and "Transferred" and
"Transferee" shall have correlative meanings.
In addition, capitalized terms used herein and not defined shall have the
meanings assigned to them in the Combination Agreement, and the following terms
are defined elsewhere in the Agreement:
Term Section
"Agreement" Preamble
"Board" 2.1
"Bring-Along Notice" 4.2
"Bring-Along Right" 4.2
"Bring-Along Shareholders" 4.2
"Bring-Along Transaction" 4.2
"Combination Agreement" Preamble
"Company" Preamble
"Company Sale" 4.2
"Election Notice" 4.1
"Eligible Bring-Along Transaction" 4.1
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"Exercising Holder" 4.1
"Extraordinary Transaction" 4.1
"15% Company Transferee" 4.4
"5% Shareholder Transferee" 4.4
"5% Company Transferee" 4.4
"Founders" Preamble
"Hampstead" Preamble
"Hicks Muse" Preamble
"HM" Preamble
"HMC" Preamble
"HMPF" Preamble
"Offer Notice" 4.1
"Offered Holder" 4.1
"Offering Holder" 4.1
"Sale Process" 4.2
"Third Party Acquiror" 4.1
ARTICLE 2
Memorandum and Articles of Association; Advisory Fees
Section 2.1 Memorandum and Articles of Association. Other than pursuant to
the Combination Agreement, the Company shall not propose, and the board of
directors of the Company (the "Board") shall not approve or recommend, any
amendment of the Memorandum of Association or Articles of Association of the
Company which materially adversely affects the rights of a Holder or the
Founders under this Agreement, without the prior written consent of the affected
Persons.
Section 2.2 Advisory Fees. Through the third anniversary of the Effective
Time (as defined in the Combination Agreement) assuming such Holder has not
experienced a 5% Event, the Hicks Holders and the Hampstead Holders shall each
be entitled to receive an annual advisory fee in the amount of U.S.$150,000 (in
the case of the Hicks Holders) and U.S.$150,000 (in the case of the Hampstead
Holders), payable on a quarterly basis. Through the earlier of the third
anniversary of the Closing and the equivalent of a 5% Event with respect to the
Founders collectively, the Founders, collectively, shall be entitled to receive
an annual advisory fee in the amount of U.S.$50,000 payable on a quarterly
basis. Such advisory fees shall not reduce the directors fees and reimbursements
that may otherwise be payable to a director designated by such Persons pursuant
to the Company's policies. The parties agree that the Company shall reimburse
directors for all reasonable expenses incurred by them in connection with their
service as such. As soon as practicable following the Effective Time, the
Company shall use its reasonable best efforts to cause the articles of
association of El Sitio, Inc. to be amended to provide for the deletion of
article 75 thereof and the termination of the obligation of El Sitio, Inc. to
pay monitoring fees pursuant thereto.
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ARTICLE 3
Competitive Activities; Information
Section 3.1 Competitive Activities. Neither any provision of this
Agreement, nor the ownership of Company Common Shares, shall (a) restrict the
Founders, CEC, the Hampstead Holders, any member of the Cisneros Family or Hicks
Holders or any of their respective Affiliates or other entities in which either
owns a substantial interest from engaging in or owning an interest in or serving
as an officer, director, employee, advisor or consultant of any business which
competes with the Company or any of its Subsidiaries, now or in the future or
(b) restrict the Company or any of its Subsidiaries from engaging in or owning
an interest in any business which competes with any of the Founders, CEC, the
Hampstead Holders, the Cisneros Family or Hicks Holders or any of their
respective Affiliates or other entities in which either owns a substantial
interest. To the fullest extent permitted by applicable law, each party hereto
hereby knowingly waives any and all claims such party may have against any of
the Founders, CEC, the Hampstead Holders, the Cisneros Family or Hicks Holders
or any of their respective Affiliates relating to any breach of fiduciary duty
or other conflict of interest, including under the doctrine of corporate
opportunity, of any of the Founders, CEC, the Hampstead Holders, the Cisneros
Family or Hicks Holders arising directly or indirectly from such competitive
activities. Notwithstanding the foregoing, all directors shall treat as
confidential and shall not use, other than in connection with their service as a
director of the Company, or a designee of a Holder, any material nonpublic
information obtained from the Company in the course of their service as a
director.
Section 3.2 Accounting, Financial Information. Subject to applicable law,
prior to a 15% Event with respect to the applicable Holders, the Company will
provide Hampstead and Hicks Muse such periodic accounting and financial
information as Hampstead or Hicks Muse may reasonably require for its internal
purposes.
Section 3.3 Corporate Records. Each of the Holders, prior to a 15% Event
with respect to such Holder, shall be entitled to full access to the corporate
records of the Company during regular business hours and upon reasonable advance
notice.
ARTICLE 4
Right of First Offer; Bring-Along; Tag-Along; Transferees Bound
Section 4.1 Right of First Offer.
(a) Except as otherwise provided herein, in the event that, at any time
following the Closing and prior to December 31, 2007, any Holder, 5% Shareholder
Transferee (as defined herein), 15% Company Transferee (as defined herein) or
other party to this Agreement (other than the Company, the Founders or CEC) (an
"Offering Holder") proposes to Transfer (other than (1) any Transfer to a
Corporate Affiliate, which Corporate Affiliate agrees to be bound by the terms
hereof, (2) any Transfer to a Person comprising such Holder or (3) pursuant to
an agreement approved by the Board with respect to a transaction involving all
or substantially all of the assets or capital stock of the Company (an
"Extraordinary Transaction")) any shares of
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Company Common Shares owned by such Offering Holder, such Offering Holder shall
first make an offer to Transfer such shares of Company Common Shares to both
Holders (or the other Holder, if the Offering Holder is a Holder) as to which a
5% Event has not occurred (each an "Offered Holder") in accordance with the
following provisions:
(i) The Offering Holder shall deliver a written notice ("Offer Notice") to the
Offered Holders stating (1) its bona fide intention to offer such shares,
(2) the number of shares to be offered and (3) the price, which shall be in
US dollars, and terms upon which it proposes to offer such shares.
(ii) Within 14 calendar days after giving of the Offer Notice, each of the
Offered Holders shall notify the Offering Holder in writing (the "Election
Notice", specifying whether such Offered Holder elects to purchase, at the
price and on the terms specified in the Offer Notice, all (but not less
than all) of the shares offered by the Offering Holder (each Offered
Holder affirmatively so electing an "Exercising Holder"). Notwithstanding
the foregoing, in the case of a proposed Transfer by the Hampstead Holders
or the Hicks Holders of all of the shares of Company Common Shares owned
by such Offering Holder (which amount is at least 50% of the number of
shares of Company Common Shares owned by the Offering Holder at Closing)
(an "Eligible Bring-Along Transaction"), the Offered Holders shall be
permitted to deliver such Election Notice within 28 calendar days after
the giving of the Offer Notice.
(iii) If only one of the Offered Holders elects to purchase all of the shares
specified in the Offer Notice, the Offering Holder shall promptly Transfer
such shares to such Offered Holder at the price and on the terms specified
in the Offer Notice. If both of the Offered Holders elect to purchase all
of the shares offered pursuant to the Offer Notice, then each Exercising
Holder shall purchase its pro rata portion, based on the relative
Ownership Percentage of each Exercising Holder. In the case of an Eligible
Bring-Along Transaction, if the Offered Holder elects to purchase less
than all of the shares specified in the Offer Notice, the Company may
elect to purchase all (but not less than all) such remaining shares on the
terms specified in the Offer Notice within 14 calendar days after
expiration of the Offer Notice or, if earlier, the date on which the
Offered Holder delivers the Election Notice. If the Company elects to
purchase such remaining shares, the Offering Holder shall promptly
Transfer such shares to the Company, and the Offered Holder, if
applicable, at the price and on the terms specified in the Offer Notice.
The closing of a purchase of shares by an Exercising Holder, Exercising
Holders or the Company pursuant to this subsection shall be no later than
10 business days following the last applicable expiration period pursuant
to paragraphs (ii) and (iii), subject to receipt of any required
regulatory approvals.
(b) Notwithstanding the foregoing, if the Offered Holders (and the Company,
in the case of an Eligible Bring-Along Transaction) do not collectively elect to
purchase all of the shares specified in the Offer Notice, the Offering Holder
shall have no obligation to sell any of such shares to the Offered Holders or
the Company, and may, subject to Sections 4.1(c) and 4.4(a) and except in the
case of an Eligible Bring-Along Transaction, during the 60 calendar day period
following the expiration of the period provided in Section 4.1(a)(ii), enter
into an agreement to Transfer all of the shares specified in the Offer Notice to
any other party (a "Third
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Party Acquiror"), at a price (in cash or publicly traded securities with a fair
market value at least equal to the cash price referred to in Section 4.1(a)(i))
and upon terms no more favorable to the Third Party Acquiror than those
specified in the Offer Notice. If the Offering Holder does not enter into an
agreement for the sale of the shares within such period, or if transactions
under such agreement are not consummated within 90 calendar days of the
execution thereof, the right provided hereunder shall be deemed to be revived
and such shares shall not be offered or Transferred unless first re-offered to
the Offered Holders in accordance with this Section.
(c) Notwithstanding any provision of this Agreement to the contrary, prior
to December 31, 2007, other than in a Bring-Along Transaction pursuant to
Section 4.2, no Holder may Transfer, in the aggregate, in any one or series of
transactions, more than 20% of the shares of Company Common Shares held by such
Holder as of the Closing to any Persons who are not, or who do not become, as a
consequence of such Transfer, parties to this Agreement.
Section 4.2 Bring-Along Right.
(a) In the event any of the Hampstead Holders or the Hicks Holders proposes
an Eligible Bring-Along Transaction, and such Offering Holder is entitled to
Transfer all of its shares of Company Common Shares in a transaction with a
Third-Party Acquiror pursuant to Section 4.1(b), then such Offering Holder shall
also have the right (a "Bring-Along Right"), upon notice no less than 10
business days to the other Holder, the Company and any other party that has
become bound by this Section 4.2 (as and to the extent set forth in Section 4.4)
(the "Bring-Along Notice"), to require all of such parties (other than the
Company and not including the Founders or CEC) (the "Bring-Along Shareholders")
to participate in such a transaction and thus cause each Bring-Along Shareholder
to dispose of 100% of its shares of Company Common Shares in such transaction on
the terms set forth in this Section 4.2 (the "Bring-Along Transaction"), the
consideration for which shall be cash and/or Marketable Securities.
Notwithstanding the foregoing, no Holder may exercise the Bring-Along Right
prior to June 30, 2005, and notice of a Holder's exercise of the Bring-Along
Right may not be given after December 31, 2007.
(b) In the event that the Offering Holder exercises the Bring-Along Right
in accordance with the terms of Section 4.2(a) above, subject to Sections
4.2(c)and 4.2(d) below, each of the Bring-Along Shareholders shall promptly
Transfer all of its Company Common Shares to the Third-Party Acquiror on the
same terms and conditions that apply to the Offering Holder in connection with
the Bring-Along Transaction. Each of the Bring-Along Shareholders and each 5%
Company Transferee further agrees to timely take such other actions as the
Offering Holder may reasonably request in connection with the approval and
consummation of such Bring-Along Transaction, including, without limitation,
causing its designees on the Board to approve such transaction, voting all of
its Company Common Shares in favor of such transaction, waiving any dissenters'
rights, and executing such agreements, powers of attorney, voting proxies,
consents or other documents and instruments as may be necessary or desirable to
consummate such Bring-Along Transaction.
(c) In the event that a Bring-Along Transaction is proposed, the
Third-Party Acquiror shall, as a condition to the consummation of the
Bring-Along Transaction, agree that, if a majority of the Board (or a special
committee thereof) so approves, the Third-Party Acquiror will
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consummate an Extraordinary Transaction in which each shareholder of the Company
would be entitled to receive, in exchange for its Company Common Shares, the
same consideration per share as the Holders pursuant to the Bring-Along
Transaction. The Third-Party Acquiror shall submit an offer to the Company with
respect to such Extraordinary Transaction no later than such time as the
Offering Holder delivers the Bring-Along Notice to the Company.
(d) In the event that the Board (or a special committee thereof) does not
approve the Extraordinary Transaction proposed by the Third-Party Acquiror
pursuant to Section 4.2(c) above within 10 calendar days after the Offering
Holder delivers the Bring-Along Notice to the Company, the Offering Holder may,
within 10 calendar days after the Board's rejection of the offer (or failure to
act within such 10 calendar day period), upon notice to the Company, initiate a
process for the possible sale of the Company (the "Sale Process") as set forth
in paragraphs (i) and (ii) below.
(i) In the event that the Offering Holder notifies the Company of its
election to initiate the Sale Process, the Company shall use its
reasonable best efforts to solicit offers from interested parties for
an alternative Extraordinary Transaction ("Company Sale"). The
Offering Holder shall be entitled to participate with the Company in
such process, and the Offering Holder and the Company shall fully
cooperate with each other in an effort to obtain the highest price for
each share of Company Common Shares. The Company shall accept and the
Board shall approve the Company Sale offered in such Sale Process that
offers the Company's shareholders the most favorable terms, provided
that (A) the price offered for the shares of Company Common Shares in
such Company Sale is equal to or greater than the price offered by the
Third Party Acquiror and (B) an internationally recognized investment
bank selected by the Board delivers an opinion to the effect that the
consideration offered to the Company's shareholders in such Company
Sale is fair from a financial point of view. In the event the Board
approves the Company Sale, each of the Holders and each 5% Company
Transferee shall vote its shares in favor of such transaction and
otherwise use its reasonable best efforts to cause such transaction to
be consummated. In the event that the Board does not obtain an offer
that satisfies both clauses (A) and (B) of this paragraph (i) and the
Board does not approve a Company Sale within 6 months following
delivery of notice to the Company of the exercise of the Bring-Along
Right, the Offering Holder may require each of the Bring-Along
Shareholders to promptly Transfer all of its Company Common Shares to
the third-party offeror (or, within 60 days of the termination of the
Sale Process, to any other party whose offer price is at least equal
to the price offered in the initial proposed Bring-Along Transaction)
in such Bring-Along Transaction on the same terms and conditions that
apply to the Offering Holder in connection with such Bring-Along
Transaction. Subject to Section 4.3, the Offering Holder may
alternatively elect to sell only its shares of Company Common Shares
as described in the preceding sentence.
(ii) In the event a Holder exercises the Bring-Along Right and neither a
Bring-Along Transaction nor a Company Sale is consummated (other than
for reasons not within such Holder's reasonable control, such as
failure of the Third-Party Acquiror to obtain financing or regulatory
obstacles to the transaction), such Holder shall not exercise the
Bring-Along Right until the earlier of 12 months after such Holder's
last exercise of the Bring-Along Right and December 31, 2007.
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(iii)The Company shall provide all reasonable cooperation as may be
requested by the Offering Holder in connection with the negotiation
and consummation of a Bring-Along Transaction or Company Sale,
including, without limitation, providing financial, business and other
information to the Third-Party Acquiror, using its reasonable best
efforts to obtain a fairness opinion if required pursuant to Section
4.2(d)(i) and other customary matters for such a transaction;
provided, however, that prior to providing any material confidential
information to such Third-Party Acquiror, the Company may request that
the Third-Party Acquiror enter into a reasonable and customary
confidentiality agreement relating to the receipt and use of such
information.
Section 4.3 Tag-Along Right; Founders' and CEC's Other Agreements.
(a) In the event that, at any time prior to December 31, 2007, any of the
Hicks Holders, Hampstead Holders, CEC and/or the Founders (collectively, the
"Tag-Along Holders") propose to sell in one transaction or a series of related
transactions (subject to the terms of this Article 4) an aggregate number of
Company Common Shares equal to or greater than 45% of the outstanding Company
Common Shares, which transaction is not a Company Sale or other Board-approved
transaction relating to the entire Company or its capital stock (a "Tag-Along
Sale"), each of the other Tag-Along Holders, so long as the applicable group has
not experienced a 5% Event, may elect within 10 calendar days of receipt of
written notice thereof, to participate on a pro rata basis (based on the
percentage sold relative to the Tag-Along Holders' entire holding), in such
Tag-Along Sale, in which case the notifying Tag-Along Holder shall cause such
other Tag-Along Holders shares to be included in the Tag-Along Sale, on the same
terms and conditions.
(b) Each of the Founders and CEC hereby agrees that, in connection with any
Company Sale or other Bring-Along Transaction that requires a vote of the
shareholders of the Company, such party will (i) vote its shares in favor of
approval of such transaction, (ii) to the full extent permitted by applicable
law, cause any designee it may have on the Board to vote, in favor of such
transaction, (iii) Transfer its shares to the acquiror in such Company Sale or
Bring-Along Transaction and (iv) otherwise cooperate with the Hicks Holders and
the Hampstead Holders in causing such Company Sale or Bring-Along Transaction to
be consummated.
(c) Schedule A hereto lists the identity of each of the Founders and the
number of Company Common Shares beneficially owned by such Founders as of the
date hereof. The Founders designate Roberto Vivo-Chaneton to be their
representative for purposes of providing any notices specified in this Section
4.3, which designee may be changed by written notice signed by Founders holding
a majority of the Company Common Shares owned by the Founders to the Company and
the Holders. In the event that any Founder that is not a natural person
experiences a change in control (such that any Person other than a Person with
such equity or voting power as of the date hereof beneficially owns or controls
45% of the equity, voting power or the ability to elect a majority of the board
of directors of such entity), such Founder's rights and obligations under this
Section 4.3 shall terminate. A Transferee of the Founders shall not be entitled
to any of the benefits of this Section 4.3 (except in the case of a Transfer to
another Founder).
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Section 4.4 Transferees Bound; Confirmatory Document Required Prior to
Transfer.
(a) In the event that either the Hampstead Holders, or the Hicks Holders
propose to Transfer Company Common Shares such that the Transferee would be a 5%
Shareholder Transferee, or if the Company proposes to Transfer Company Common
Shares such that the Transferee would be a 15% Company Transferee, the proposed
Transferee(s) of Company Common Shares shall first be required to execute a
confirmatory document in which it agrees in writing to be bound by the terms of
Sections 4.1, 4.2, 4.4 and 5.3. The restrictions set forth in Sections 4.1, 4.2,
4.4 and 5.3 shall also apply to any subsequent Transfers of such Company Common
Shares. Any 5% Shareholder Transferee or 15% Company Transferee shall have the
obligations of an Offering Holder under Section 4.1 but not the rights of an
Offered Holder. Such 5% Shareholder Transferee or 15% Company Transferee shall
not have any rights of an Offering Holder (including the Bring-Along Right)
pursuant to Section 4.2, but shall have the obligations of an Offered Holder
pursuant to Section 4.2. In the event that the Company proposes to Transfer
Company Common Shares such that the Transferee would be a 5% Company Transferee,
the proposed Transferee(s) of Company Common Shares shall first be required to
execute a confirmatory document in which it agrees in writing to be bound by the
terms of Sections 4.2(b) and 4.2(d)(i). The restrictions set forth in Sections
4.2(b) and 4.2(d)(i) shall also apply to any subsequent Transferees of such
shares of Company Common Shares. Notwithstanding this Section 4.4 and any other
provision hereof to the contrary, a 5% Company Transferee shall only have the
obligation to vote its shares in favor of a Bring-Along Transaction pursuant to
Section 4.2(b) or a Company Sale and otherwise use its reasonable best efforts
to cause such Company Sale to be consummated pursuant to Section 4.2(d)(i).
(b) A "5% Shareholder Transferee" shall be a Person which acquires at least
5% of the outstanding voting stock of the Company from a Holder or from a
Transferee of such Holder. A "15% Company Transferee" shall be a Person which
acquires at least 15% of the outstanding voting stock of the Company from the
Company. A "5% Company Transferee" shall be a Person which acquires at least 5%
but less than 15% of the outstanding voting stock of the Company from the
Company.
(c) The provisions of this Article shall not apply to a Transfer between
Holders or among Persons comprising one Holder, or a Transfer to a Corporate
Affiliate that in connection with such Transfer becomes a member of the
applicable Holder.
ARTICLE 5
Miscellaneous
Section 5.1 Transfers; Affiliates.
(a) A Holder may Transfer shares to another member or members of the
applicable group of Holders so long as each such Transferee agrees
unconditionally to be bound by the terms hereof to the full extent of the
obligations of the transferor hereunder. Any such agreement shall be in writing,
in a form reasonably satisfactory to the Company and the Board, entered into
prior to effecting the Transfer and provided to the other Holder as to which a
15%
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Event has not occurred. For the avoidance of doubt, this Section 5.1(a)
shall not apply to any Transfer by a Founder.
(b) A Transfer in violation of this Section 5.1, or any other provision of
this Agreement, shall be null and void, and the Company shall not give effect to
such Transfer on the stock transfer books of the Company nor recognize for any
purpose the transferee as the holder of the shares purported to be Transferred.
Section 5.2 Further Assurances. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated hereby,
including making application as soon as practicable hereafter for all consents
and approvals required in connection with the transactions contemplated hereby
and diligently pursuing the receipt of such consents and approvals in good faith
thereafter.
Section 5.3 Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby may be brought in any
U.S. federal court located in the Southern District of the State of New York or
any New York state court in the Borough of Manhattan, and each of the parties
hereby irrevocably consents to the exclusive jurisdiction of such courts (except
in the case of enforcement of orders, in which case the jurisdiction of such
courts shall be non-exclusive) (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 5.7
shall be deemed effective service of process on such party.
Section 5.4 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.5 Public Announcements and Confidentiality. No party hereto will
make any public announcement concerning transactions contemplated by this
Agreement prior to reaching agreement with the other parties hereto, unless
required to do so by applicable law or regulation. The parties hereto agree,
except as may be required by applicable law or regulation, not to further
disclose any terms of the agreements contemplated hereby or any of the
transactions or other matters contemplated thereby or related thereto.
Section 5.6 Expenses. Except as otherwise specifically provided in this
Agreement or the Combination Agreement, each party shall bear its own expenses,
including the fees and expenses of any attorneys, accountants, investment
bankers, brokers, finders or other intermediaries or other Persons engaged by
it, incurred in connection with this Agreement and the transactions contemplated
hereby.
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Section 5.7 Notices. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), or when delivered by telecopy and confirmed
by return telecopy, in each case to the applicable addresses set forth below, or
such other address as any such party shall have designated by notice to the
other parties:
(a) If to Hampstead or to any member of the Cisneros Family:
Hampstead Management Company Ltd.
c/o Finser Corporation
550 Biltmore Way
Suite 900
Coral Gables, Florida 33434
Attention: General Counsel
Facsimile: (305) 447-1389
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich, Esq.
Andrew J. Nussbaum, Esq.
Facsimile: (212) 403-2000
(b) If to the Company or any of the Founders:
El Sitio, Inc.
Avenida Ingeniero Huergo 1167
Buenos Aires, Argentina
Attention: General Counsel
Facsimile: 011-5411-4339-3700
with a copy (which shall not constitute notice) to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Alan M. Klein, Esq.
Glenn M. Reiter, Esq.
Facsimile: (212) 455-2502
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(c) If to any of HM, HMPF or HMC:
c/o Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court
Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Facsimile: (214) 740-7313
with a copy (which shall not constitute notice) to:
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
Attention: L. Kevin O'Mara, Jr., Esq.
Facsimile: (212) 878-8375
(d) If to CEC:
c/o Cisneros Television Group
404 Washington Avenue
8th Floor
Miami, Florida 33139
Attention: Carlos E. Cisneros
Facsimile: (305) 894-3601
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich, Esq.
Andrew J. Nussbaum, Esq.
Facsimile: (212) 403-2000
Section 5.8 Termination. This Agreement may be terminated at any time by
the mutual consent of the Holders who have not experienced a 5% Event. Unless
earlier terminated, this Agreement will terminate in full on December 31, 2007
(subject to extension in the event a Sale Process is then in progress). Except
to the extent earlier terminated as to particular Sections
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or Holders, this Agreement shall terminate in full at such time as both Holders
have experienced a 5% Event.
Section 5.9 Amendment. This Agreement may be amended, modified, superseded
or cancelled only by an agreement in writing signed by the Holders, provided
that any such change shall not increase the obligations of a non-Holder
hereunder without such party's written consent. The rights of the Founders and
CEC under Section 4.3 or any other Section hereof under which such party has
rights may not be amended in any manner adverse, as the case may be, to (x) the
Founders without the prior written consent of Founders then holding at least
50.0% of the Company Common Shares then owned by all of the Founders or (y) CEC,
without the prior written consent of CEC.
Section 5.10 Waiver; Effect of Waiver. No provision of this Agreement may
be waived except by a written instrument signed by the party waiving compliance.
No waiver by any party hereto of any of the requirements hereof or of any of
such party's rights hereunder shall release the other parties from full
performance of their remaining obligations stated herein. No failure to exercise
or delay in exercising on the part of any party hereto any right, power or
privilege of such party shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
by such party.
Section 5.11 Successors and Assigns. Except as set forth herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Except as set forth
herein, no party hereto shall be entitled to assign its rights or delegate its
obligations under this Agreement (other than to Affiliates) without the express
prior written consent of the other parties hereto. Any purported assignment or
delegation made in violation of this Section shall be null and void and of no
effect. Notwithstanding anything in this Agreement to the contrary, any party
hereto (other than the Founders) may assign its rights hereunder to any one or
more Person or Persons to whom all or substantially all of its respective
businesses are assigned or otherwise Transferred, so long as such Person or
Persons assumes the obligations of such party hereunder and such assignment does
not deprive any other party hereunder of the benefits of this Agreement.
Section 5.12 Specific Performance. The parties hereto each acknowledge
that, in view of the uniqueness of the parties hereto, the parties hereto would
not have an adequate remedy at law for money damages in the event that this
Agreement were not performed in accordance with its terms, and therefore agree
that the parties hereto shall be entitled to specific enforcement of the terms
hereof in addition to any other remedy to which the parties hereto may be
entitled at law or in equity.
Section 5.13 Entire Agreement. Except as otherwise provided herein, this
Agreement embodies the entire agreement and understanding between the parties,
or among any of them, relating to the subject matter hereof and supersedes (i)
all prior agreements and understandings relating to such subject matter, whether
written or oral and (ii) any contemporaneous oral understandings related to the
subject matter hereof.
Section 5.14 Interpretation; Absence of Presumption.
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(a) For the purposes hereof, (i) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires; (ii) the terms "hereof,"
"herein," and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole (including all of the
Exhibits hereto) and not to any particular provision of this Agreement, and
Article, Section, subsection, paragraph and Exhibit references are to the
Articles, Sections, subsections and paragraphs of and Exhibits to this Agreement
unless otherwise specified; (iii) the word "including" and words of similar
import when used in this Agreement shall mean "including, without limitation,"
unless the context otherwise requires or unless otherwise specified; (iv)
provisions shall apply, when appropriate, to successive events and transactions;
and (v) all references to any period of days shall be deemed to be to the
relevant number of calendar days.
(b) This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
Section 5.15 Headings. The name assigned this Agreement and the Section,
Article and other headings contained in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
Section 5.16 Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law.
Section 5.17 Remedies Cumulative. Except as otherwise specifically provided
herein, all rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 5.18 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
Section 5.19 Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when counterparts have been signed by each party hereto
and delivered to each other party. Copies of executed counterparts transmitted
by telecopy, telefax or other electronic transmission service shall be
considered original executed counterparts for purposes of this Section, provided
that receipt of copies of such counterparts is confirmed.
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IN WITNESS WHEREOF, each of the undersigned, intending to be legally
bound, has caused this Agreement to be duly executed and delivered on the date
first set forth above.
NEW SITE INC.
By:_______________________________________
Name:
Title:
HAMPSTEAD MANAGEMENT COMPANY LTD.
By:_______________________________________
Name:
Title:
HICKS, MUSE, TATE & FURST LATIN AMERICA
FUND, L.P.
By:_______________________________________
Name:
Title:
HICKS, MUSE, TATE & FURST LATIN AMERICA
PRIVATE FUND, L.P.
By:_______________________________________
Name:
Title:
HMLA 1-SBS COINVESTORS, L.P.
By:_______________________________________
Name:
Title:
CARLOS ENRIQUE CISNEROS
By:_____________________________________
Carlos Enrique Cisneros
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MILITELLO LIMITED
By:_______________________________________
Name:
Title:
ROBERTO VIVO-CHANETON
By:_______________________________________
Name:
Title:
IMPSAT FIBER NETWORKS, INC.
By:_______________________________________
Name:
Title:
SLI.COM INC.
By:_______________________________________
Name:
Title:
TOWER PLUS INTERNATIONAL
By:_______________________________________
Name:
Title:
RC LIMITED
By:_______________________________________
Name:
Title:
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ROBERTO CIBRIAN-CAMPOY
By:_______________________________________
Name:
Title:
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SCHEDULE A
Founders
Name and Controlling Shareholder (if any) Number of Common Shares
----------------------------------------- -----------------------
Militello Limited
Roberto Vivo-Chaneton
IMPSAT Fiber Networks, Inc.
SLI.com Inc.
Tower Plus International
Roberto Cibrian-Campoy
RC Limited
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