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Exhibit 5
SHAREHOLDERS AGREEMENT
THIS AGREEMENT is entered into as of this 21st day of April,
2000, by and between MANUEL D. MEDINA, ATTU Services, Inc., TCO Company Limited,
WILLY BERMELLO, BRIAN GOODKIND, MICHAEL KATZ, WILLIAM BIONDI, EDWARD JACOBSEN,
IRVING PADRON, JR., AND AVIVA BUDD each having an address c/o Terremark
Holdings, Inc., 2601 South Bayshore Drive, 9th Floor, Coconut Grove, Florida
33133, Attention: Brian Goodkind (collectively, the "Terremark Shareholders").
W I T N E S S E T H :
WHEREAS, Terremark Holdings, Inc., a Florida corporation ("Terremark")
and AmTec, Inc., a Delaware corporation ("AmTec") entered into the Agreement and
Plan of Merger dated as of November 24, 1999 ("Merger Agreement") pursuant to
which Terremark will merge into AmTec and the Terremark Shareholders will
receive shares of common stock of AmTec, $0.001 par value ("AmTec Common Stock")
as provided in the Merger Agreement; and
WHEREAS, Vistagreen Holdings (Bahamas), Ltd., a Bahamas corporation
("Vistagreen") and AmTec entered into a Stock Purchase Agreement dated as of
November 24, 1999 ("Stock Purchase Agreement") pursuant to which, immediately
following the closing of the Merger Agreement, AmTec will sell to Vistagreen and
Moraine Investments, Inc., a British Virgin Islands international business
corporation (collectively the "Vistagreen Parties"), or their assignees, shares
of AmTec Common Stock as provided in the Stock Purchase Agreement in exchange
for Note Proceeds (as defined in the Stock Purchase Agreement), together with
all interest earned thereon; and
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WHEREAS, immediately following the closing of the Merger Agreement and
the closing of the Stock Purchase Agreement the percentage ownership of the
existing holders of AmTec Common Stock and Preferred Stock, Warrants, Options
and other securities upon total exercise or conversion prior to such closings
shall be 25%, the percentage ownership of the Vistagreen Parties shall be 35%
and the percentage ownership of the Terremark Shareholders shall be 40%, each
such percentage representing the respective ownership of such parties of the
AmTec Common Stock on a fully diluted basis immediately following such closings;
and
WHEREAS, Katz, Biondi, Goodkind, Padron, Budd and Jacobsen own
preferred convertible stock (the "Preferred Stock"), which stock is convertible
pursuant to a valuation formula set forth in the statement of preferences for
such Preferred Stock, and the holders of such Preferred Stock are desirous of
converting same and are required to do so by virtue of the Merger Agreement; and
WHEREAS, the Terremark Shareholders wish to enter into this shareholder
agreement (the "Agreement") pursuant to Section 607.0731 of the Florida Business
Corporation Act to ensure that the Terremark Shareholders vote as a group, as
directed by Manual D. Medina;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. CONVERSION OF PREFERRED STOCK. The Terremark Shareholders recognize
that the Preferred Stock must be converted to Terremark common stock prior to
the closing on the Merger Agreement and that either Terremark Holdings or the
holders of the Preferred Stock have the right to force such a conversion. The
parties also recognize that the conversion formula is based on a valuation of
the Company and differs depending upon whether conversion is at the option of
the Company or the holders and, if at the option of the Company, the reason why
it is being required. In order to avoid delay, cost and potential disagreement,
all parties hereto stipulate that, for the purposes of this document, the value
of the Company is $15,000,000, and that pursuant to paragraph E(iv) of the
statement of preferences governing the Preferred Stock, such stock shall
convert into 124,584 shares of common stock, representing 10% of the total of
all then outstanding Terremark Common Stock.
2. VOTING OF AMTEC SHARES. In any vote of the AmTec Common Stock,
whether at a meeting or by written consent, the Terremark Shareholders agree to
vote all shares of AmTec Common Stock received pursuant to the Merger Agreement
and any subsequently acquired, as directed by Manuel D. Medina for one year
from the date of the closing on the Merger Agreement. Thereafter, any one or
more of the Terremark Shareholders can elect to remove themselves from this
voting agreement by providing ninety days written notice to all other Terremark
Shareholders.
3. BINDING NATURE. This Agreement shall be binding on and inure to the
benefit of the respective parties hereto and their successors and assigns.
Section 607.0731 of the Florida Business Corporation Act provides that this
Agreement is binding on the transferees of the parties to this Agreement,
provided that the transferee takes the AmTec Common Stock subject to this
Agreement with notice thereof. The parties hereby, and their successors and
assigns, agree to provide notice of this Agreement to any transferee prior to
any transfer of AmTec Common Stock. Notwithstanding the foregoing, this
Agreement shall not be binding with regard to AmTec Common Stock sold in the
ordinary course over the American Stock Exchange or on any such other exchange
on which the stock may, from time to time, be listed.
4. OTHER PROVISIONS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement represents the entire
understanding of the parties regarding the subject matter hereof, and supersedes
any and all other inconsistent or conflicting prior agreements between the
parties. The terms and provisions of this Agreement cannot be terminated or
modified or amended orally or by course of conduct or dealing or in any manner
except in a writing that is signed by the party against whom enforcement is
sought. This Agreement shall be construed in accordance with the laws of the
State of Florida, and any suit,
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action or proceeding arising out of or relating to this Agreement may be
commenced and maintained in any court of competent subject matter jurisdiction
in Miami-Dade County, Florida, and each party waives objection to such
jurisdiction and venue. The provisions of this Agreement are severable, and any
invalidity, unenforceability or illegality in any provision or provisions hereof
shall not affect the remaining provisions of this Agreement. In any suit, action
or proceeding arising out of or in connection with this Agreement, the
prevailing party shall be entitled to an award of the reasonable attorneys' fees
and disbursements incurred by such party in connection therewith, including fees
and disbursements in administrative, regulatory, insolvency, bankruptcy and
appellate proceedings. All notices required or allowed hereunder shall be in
writing and shall be deemed given upon (i) hand delivery or (ii) delivery by
reputable overnight courier service, or (iii) delivery by facsimile with
confirmation of receipt, or (iv) deposit of same in the United States Certified
Mail, Return Receipt Requested, first class postage and registration fees
prepaid and correctly addressed to the party for whom intended at their address
written in the first page hereof, or such other address as is most recently
noticed for such party as aforesaid, or (v) via overnight courier. All
references to gender or number in this Agreement shall be deemed interchangeably
to have a masculine, feminine, neuter, singular or plural meaning, as the sense
of the context requires.
IN WITNESS WHEREOF, the execution of this Agreement as of the date
first above written.
TERREMARK SHAREHOLDERS
/s/ Brian Goodkind
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BRIAN GOODKIND
/s/ Michael L. Katz
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MICHAEL L. KATZ
/s/ William Biondi
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WILLIAM BIONDI
/s/ Edward P. Jacobsen
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EDWARD P. JACOBSEN
/s/ Irving I. Padron, Jr.
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IRVING I. PADRON, JR.
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AJR, LLC, a Connecticut Limited Liability
Company
By: /s/ Aviva Budd
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Name: AVIVA BUDD
Title: Managing Member
ATTU SERVICES, INC.
By: /s/ Adrian Crosbie-Jones
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Name: ADRIAN CROSBIE-JONES
Title: Business Administration Limited -
Director
/s/ Manuel D. Medina
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MANUEL D. MEDINA
/s/ William Bermello
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WILLIAM BERMELLO
TCO COMPANY, LTD.
By: /s/ Adrian Crosbie-Jones
-----------------------------------------
Name: ADRIAN CROSBIE-JONES
Title: Business Administration Limited -
Director
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