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As filed with the Securities and Exchange Commission on June 23, 2000
Registration No. 333-95051
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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AMENDMENT NO. 7
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICA ONLINE LATIN AMERICA, INC.
(Exact name of registrant as specified in its charter)
Delaware 7370 65-0963212
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
6600 N. Andrews Avenue
Suite 500
Fort Lauderdale, FL 33309
(954) 229-2100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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Charles M. Herington
Chief Executive Officer
America Online Latin America, Inc.
6600 N. Andrews Avenue
Suite 500
Fort Lauderdale, FL 33309
(954) 229-2100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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With copies to:
Michael L. Fantozzi, Esq. Marc S. Rosenberg, Esq.
Peter S. Lawrence, Esq. Cravath, Swaine & Moore
Mintz, Levin, Cohn, Ferris, Worldwide Plaza
Glovsky and Popeo, P.C. 825 Eighth Avenue
One Financial Center New York, NY 10019
Boston, MA 02111 (212) 474-1000
(617) 542-6000
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Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered or
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
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 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 registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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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 Section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth an itemization of all estimated expenses, all
of which we will pay, in connection with the issuance and distribution of the
securities being registered:
<TABLE>
<S> <C>
SEC Registration Fee........................................... $ 182,160
Nasdaq National Market Listing Fee............................. 95,000
NASD Filing Fee................................................ 30,500
Printing and Engraving Fees.................................... 300,000
Legal Fees and Expenses........................................ 1,450,000
Accounting Fees and Expenses................................... 700,000
Blue Sky Fees and Expenses..................................... 5,000
Transfer Agent and Registrar Fees.............................. 2,000
Miscellaneous.................................................. 250,340
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Total........................................................ $3,015,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers.
Our restated certificate of incorporation provides that we shall indemnify
to the fullest extent authorized by the Delaware General Corporation Law, each
person who is involved in any litigation or other proceeding because such
person is or was a director or officer of AOL-LA or is or was serving as an
officer or director of another entity at our request, against all expense, loss
or liability reasonably incurred or suffered in connection with such service.
Our restated certificate of incorporation provides that the right to
indemnification includes the right to be paid expenses incurred in defending
any proceeding in advance of its final disposition; provided, however, that
such advance payment will only be made upon delivery to us of an undertaking,
by or on behalf of the director or officer, to repay all amounts advanced if it
is ultimately determined that such director is not entitled to indemnification.
If we do not pay a proper claim for indemnification in full within 60 days
after we receive a written claim for such indemnification, our restated by-laws
authorize the claimant to bring an action against us and prescribe what
constitutes a defense to such action.
Section 145 of the Delaware General Corporation Law permits a corporation to
indemnify any director or officer of the corporation against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or
proceeding brought because such person is or was a director or officer of the
corporation, if such person acted in good faith and in a manner that he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he or
she had no reason to believe his or her conduct was unlawful. In a derivative
action, (i.e., one brought by or on behalf of the corporation), indemnification
may be provided only for expenses actually and reasonably incurred by any
director or officer in connection with the defense or settlement of such an
action or suit if such person acted in good faith and in a manner that he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be provided if such person
shall have been adjudged to be liable to the corporation, unless and only to
the extent that the court in which the action or suit was brought shall
determine that the defendant is fairly and reasonably entitled to indemnify for
such expenses despite such adjudication of liability.
Our restated certificate of incorporation contains a provision, permitted by
the Delaware General Corporation Law, that generally eliminates the liability
of a director to us or our stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liabilities arising:
. from any breach of the director's duty of loyalty to us or our
stockholders;
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. from acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law relating to
unlawful payment of dividends or unlawful stock purchase or redemption of
stock; and
. from any transaction from which the director derived an improper personal
benefit.
We intend to enter into insurance policies insuring our directors and
officers against certain liabilities that they may incur in their capacity as
directors and officers.
Additionally, reference is made to the Underwriting Agreement to be filed as
Exhibit 1.1 hereto, which provides for indemnification by the underwriters of
AOL-LA, our directors and officers who sign the Registration Statement and
persons who control AOL-LA, under certain circumstances.
Indemnification of AOL and the Cisneros Group
Each of our restated certificate of incorporation and the stockholders'
agreement between AOL, the Cisneros Group and us provides that we will
indemnify AOL and the Cisneros Group to the fullest extent authorized by the
Delaware General Corporation Law if we or any of our stockholders or any other
person bring an action against AOL or the Cisneros Group seeking damages or
other relief based on a breach or alleged breach of a fiduciary or other duty
by AOL or the Cisneros Group based on AOL or the Cisneros Group engaging or
investing in any business activity, including those that might be similar to
and in competition with us, or based on the pursuit by AOL or the Cisneros
group of an investment or a business opportunity or prospective economic
advantage in which we could have an interest or expectancy. Each of our
restated certificate of incorporation and the stockholders' agreement further
provides that the right to indemnification includes the right to be paid
expenses incurred in defending any proceeding in advance of its final
disposition; provided, however, that such advance payment will only be made
upon delivery to us of an undertaking, by or on behalf of AOL or the Cisneros
Group, to repay all amounts advanced if it is ultimately determined that AOL or
Cisneros Group is not entitled to indemnification. If we do not pay a proper
claim for indemnification in full within 60 days after we receive a written
claim for such indemnification, our restated certificate of incorporation and
the stockholders' agreement authorize AOL or the Cisneros Group to bring an
action against us and prescribe what constitutes a defense to such action.
Item 15. Recent and Anticipated Sales of Unregistered Securities.
In the three years preceding the filing of this Registration Statement, we
have sold the following securities that were not registered under the
Securities Act as summarized below.
(a) Issuances of Capital Stock
On , 2000, we entered into a contribution agreement with AOL, Riverview
Media Corp., a wholly owned subsidiary of the Cisneros Group, and AOL Latin
America, S.L. under which we will issue shares of our series B preferred
stock to AOL and shares of our series C preferred stock to Riverview Media
Corp. and two current executives and one former executive of the Cisneros Group
in exchange for their contribution to us of all their interests in AOL Latin
America S.L. AOL contributed a royalty free license in exchange for shares of
our series B preferred stock. We recorded the value of the license at AOL's
historical cost basis, which was zero. The Cisneros Group has contributed an
aggregate amount of $100 million for our series C preferred stock.
On , 2000, we entered into a stock subscription agreement with Banco
Itau, under which we will issue shares of class A common stock to Banco
Itau at the initial public offering price contemporaneously with the closing of
this offering.
(b) Issuance of Warrant
On , 2000, we will issue a warrant to AOL to purchase any combination
of shares of series B preferred stock or class A or class B common stock
at a per share exercise price equal to the initial public offering price.
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(c) Grant of Stock Options
Pursuant to our 2000 Stock Plan, immediately prior to the effectiveness of
our initial public offering, we will issue options to purchase an aggregate of
shares of Class A common stock at the initial public offering price.
Except with respect to the sale to Banco Itau, the sale and issuance of the
above securities were deemed to be exempt from registration under the
Securities Act in reliance on Section 4(2) of the Securities Act, or Regulation
D promulgated thereunder, or Rule 701 promulgated under Section 3(b) of the
Securities Act, as transactions by an issuer not involving a public offering or
transactions pursuant to compensatory benefit plans and contracts relating to
compensation as provided under Rule 701. The recipient of securities in each
such transaction represented their intention to acquire the securities for
investment only and not with the view to or for the sale in connection with any
distribution thereof and appropriate legends will be affixed to the share
certificates and instruments issued in such transactions. All recipients had
adequate access, through their relationships with AOL-LA, to information about
us. We will sell the shares of class A common stock to Banco Itau under
Regulation S.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
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<CAPTION>
Exhibit
Number Description of Exhibit
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<C> <S> <C>
*1.1 Form of Underwriting Agreement.
@3.1 Restated Certificate of Incorporation of America Online Latin
America, Inc. to be effective upon completion of the initial
public offering.
@3.2 Restated By-laws of America Online Latin America, Inc. to be
effective upon completion of the initial public offering.
*4.1 Form of class A Common Stock Certificate.
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
on the legality of securities being registered.
10.1 Form of America Online Latin America, Inc. 2000 Stock Plan.
+10.2 Stockholders' Agreement by and among America Online Latin
America, Inc., America Online, Inc. and Riverview Media Corp.,
dated as of , 2000.
@10.3 Contribution Agreement by and among America Online Latin
America, Inc., AOL Latin America, S.L., America Online, Inc. and
Riverview Media Corp., dated as of , 2000.
@10.4 Registration Rights Agreement by and among America Online Latin
America, Inc.,
America Online, Inc. and Riverview Media Corp., dated as of ,
2000.
+10.5 AOL License Agreement by and between America Online, Inc. and
America Online Latin America, Inc., dated as of , 2000.
+10.6 AOL Online Services Agreement by and between America Online,
Inc. and America Online Latin America, Inc., dated as of ,
2000.
@10.7 Form of Warrant to be issued by America Online Latin America,
Inc. to America Online, Inc., dated as of , 2000.
*10.8 Letter of employment for Charles M. Herington, dated February
26, 1999.
10.9 [intentionally omitted]
@+10.10 Agreement by and between Embratel and AOL Brasil Ltda., dated as
of October 18, 1999.
@+10.11 Agreement by and between Netstream Telecom Ltda. and AOL Brasil
Ltda., dated as of September 24, 1999.
@+10.12 Form of Amendment to Agreement by and between Embratel and AOL
Brasil Ltda., dated as of October 18, 1999.
</TABLE>
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<TABLE>
<C> <S> <C>
+10.13 Strategic Interactive Services and Marketing Agreement by and
among AOL Latin America, Inc., AOL Brasil Ltda. and Banco Itau
S.A., dated as of , 2000.
10.14 Stock Subscription Agreement by and among AOL Latin America,
Inc., Banco Itau S.A. and Banco Banerj S.A., dated as of ,
2000.
10.15 Form of Registration Rights and Stockholders' Agreement by and
among AOL Latin America, Inc., Banco Itau S.A. and Banco Banerj
S.A., dated as of , 2000.
10.16 Form of Escrow Agreement by and among The Bank of New York, AOL
Latin America, Inc., AOL Brasil Ltda. and Banco Itau S.A., dated
as of , 2000.
+10.17 Agreement by and between Avantel, S.A. and AOL Mexico, S. de R.L.
de C.V., dated as of January 20, 2000.
+10.18 Agreement by and between Impsat, S.A. and AOL Argentina, S.R.L.,
dated as of December 23, 1999.
*10.19 Funding Agreement by and among AOL Latin America, S.L., America
Online, Inc. and Riverview Media Corp., dated as of , 2000.
@21.1 Subsidiaries of America Online Latin America, Inc.
23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(see Exhibit 5.1)
@24.1 Powers of Attorney.
99.1 Consent of Roberto Egydio Setubal.
</TABLE>
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* To be filed by amendment.
+ Confidential treatment has been requested for portions of this exhibit. These
portions have been omitted and filed separately with the Commission.
@ Previously filed.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment No. 7 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Sao Paulo, Brazil, on June 20, 2000.
America Online Latin America, Inc.
/s/ Charles M. Herington
By: _________________________________
Charles M. Herington
Chief Executive Officer
As required by the Securities Act of 1933, this Amendment No. 7 to the
Registration Statement has been signed by the following persons in the
capacities held on the dates indicated.
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<S> <C> <C>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Charles M. Herington Chief Executive Officer June 20, 2000
______________________________________ (principal executive
Charles M. Herington officer)
* Chief Financial Officer June 20, 2000
______________________________________ (principal financial and
Javier Aguirre accounting officer)
* Director June 20, 2000
______________________________________
Steven I. Bandel
* Director June 20, 2000
______________________________________
Gustavo A. Cisneros
* Director June 20, 2000
______________________________________
Ricardo J. Cisneros
* Director June 20, 2000
______________________________________
Miles R. Gilburne
* Director June 20, 2000
______________________________________
J. Michael Kelly
* Director June 20, 2000
______________________________________
Michael Lynton
* Director June 20, 2000
______________________________________
Robert S. O'Hara, Jr.
</TABLE>
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<TABLE>
<S> <C> <C>
<CAPTION>
Signature Title Date
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<S> <C> <C>
* Director June 20, 2000
______________________________________
Cristina Pieretti
* Director June 20, 2000
______________________________________
Robert W. Pittman
* Director June 20, 2000
______________________________________
Gerald Sokol, Jr.
</TABLE>
* By executing his name hereto, Charles M. Herington is signing this document
on behalf of the persons indicated above by the powers of attorney duly
executed by these persons and filed with the Securities and Exchange
Commission.
/s/ Charles M. Herington
By: _________________________________
Charles M. Herington
(Attorney-in-fact)
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<C> <S> <C>
*1.1 Form of Underwriting Agreement.
@3.1 Restated Certificate of Incorporation of America Online Latin
America, Inc. to be effective upon completion of the initial
public offering.
@3.2 Restated By-laws of America Online Latin America, Inc. to be
effective upon completion of the initial public offering.
*4.1 Form of class A Common Stock Certificate.
*5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
on the legality of securities being registered.
10.1 Form of America Online Latin America, Inc. 2000 Stock Plan.
+10.2 Stockholders' Agreement by and among America Online Latin
America, Inc., America Online, Inc. and Riverview Media Corp.,
dated as of , 2000.
@10.3 Contribution Agreement by and among America Online Latin
America, Inc., AOL Latin America, S.L., America Online, Inc. and
Riverview Media Corp., dated as of , 2000.
@10.4 Registration Rights Agreement by and among America Online Latin
America, Inc.,
America Online, Inc. and Riverview Media Corp., dated as of ,
2000.
+10.5 AOL License Agreement by and between America Online, Inc. and
America Online Latin America, Inc., dated as of , 2000.
+10.6 AOL Online Services Agreement by and between America Online,
Inc. and America Online Latin America, Inc., dated as of ,
2000.
@10.7 Form of Warrant to be issued by America Online Latin America,
Inc. to America Online, Inc., dated as of , 2000.
*10.8 Letter of employment for Charles M. Herington, dated February
26, 1999.
10.9 [intentionally omitted]
@+10.10 Agreement by and between Embratel and AOL Brasil Ltda., dated as
of October 18, 1999.
@+10.11 Agreement by and between Netstream Telecom Ltda. and AOL Brasil
Ltda., dated as of September 24, 1999.
@+10.12 Form of Amendment to Agreement by and between Embratel and AOL
Brasil Ltda., dated as of October 18, 1999.
+10.13 Strategic Interactive Services and Marketing Agreement by and
among AOL Latin America, Inc., AOL Brasil Ltda. and Banco Itau
S.A., dated as of , 2000.
10.14 Stock Subscription Agreement by and among AOL Latin America,
Inc., Banco Itau S.A. and Banco Banerj S.A., dated as of ,
2000.
10.15 Form of Registration Rights and Stockholders' Agreement by and
among AOL Latin America, Inc., Banco Itau S.A. and Banco Banerj
S.A., dated as of , 2000.
10.16 Form of Escrow Agreement by and among The Bank of New York, AOL
Latin America, Inc., AOL Brasil Ltda. and Banco Itau S.A., dated
as of , 2000.
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<C> <S> <C>
+10.17 Agreement by and between Avantel, S.A. and AOL Mexico, S. de
R.L. de C.V., dated as of January 20, 2000.
+10.18 Agreement by and between Impsat, S.A. and AOL Argentina, S.R.L.,
dated as of December 23, 1999.
*10.19 Funding Agreement by and among AOL Latin America, S.L., America
Online, Inc. and Riverview Media Corp., dated as of , 2000.
@21.1 Subsidiaries of America Online Latin America, Inc.
23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(see Exhibit 5.1)
@24.1 Powers of Attorney.
99.1 Consent of Roberto Egydio Setubal.
</TABLE>
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* To be filed by amendment.
+ Confidential treatment has been requested for portions of this exhibit.
These portions have been omitted and filed separately with the Commission.
@ Previously filed.
