EXHIBIT 3.1
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AGREEMENT
by and among
1947 PTVI LLC
1945 PTVI LLC
HICKS, MUSE, XXXX & XXXXX LATIN AMERICA FUND, X.X.
XXXXX, MUSE, XXXX & XXXXX LATIN AMERICA PRIVATE FUND, L.P.
HMLA 1-SBS COINVESTORS, L.P.
CERTAIN CLAXSON INTERACTIVE GROUP INC. STOCKHOLDERS
and
CLAXSON INTERACTIVE GROUP INC.
Dated as of September 21, 2001
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AGREEMENT dated as of September 21, 2001 (this "Agreement")
by and among 1947 PTVI LLC ("1947")and 1945 PTVI LLC ("1945"), Delaware limited
liability companies, Hicks, Muse, Xxxx & Xxxxx Latin America Fund, L.P., a
Delaware limited partnership ("HM"), Hicks, Muse, Xxxx & Xxxxx 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, "Xxxxx Muse"), certain shareholders of Claxson Interactive Group Inc.
listed on Schedule A hereto (for purposes of Section 2.1, 2.2., 3.1, 4.3 and
Article V) (the "Founders"), Xxxxxx Xxxxxxx Xxxxxxxx (for purposes of Sections
3.1 and 4.3 and Article V) and Claxson Interactive Group 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
(as amended, the "Combination Agreement") relating to a transaction involving
the Company, 1947 and 1945 and Xxxxx Muse and certain related matters;
WHEREAS, the Holders (as defined herein), the Founders, CEC
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 (whether by proxy, contract or otherwise) to direct
or control the voting or disposition of such security.
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"CEC" shall mean Caries Xxxxxxx Xxxxxxxx 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.
"Xxxxxxxx Family" shall mean Xxxxxxx Xxxxxxxx or Xxxxxxx
Xxxxxxxx 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 agreed to be bound by this
Agreement, other than CEC, unless CEC agrees in writing to be bound by the
terms hereof.
"Company Common Shares" shall mean the Class A common
shares, par value U.S.$0.0l 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 Xxxxxxxx Family shall be deemed to be a Corporate Affiliate of
each member of the Xxxxxxxx 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).
"Xxxxx Holder" shall mean, as of any date, any of the
entities referred to herein collectively as Xxxxx 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 1947/1945 Holders
and/or the Xxxxx 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.
"Memorandum of Association" shall mean the Amended and
Restated Memorandum of Association of the Company, as in effect as of the
Closing.
"1947/1 945 Holder" shall mean, as of any date, 1947, 1945
or any Corporate Affiliate of 1947 or 1945 that owns Company Common Shares on
that date and any member of the Xxxxxxxx Family or Corporate Affiliate of any
member of the Xxxxxxxx Family who owns such shares and has agreed to be bound
by the terms hereof.
"Original Founders" shall mean the Founders other than Xxxx
X. Xxxxxx III.
"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,
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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 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.
"3% 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 3% 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).
"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
"Exercising Holder" 4.1
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Term Section
"Extraordinary Transaction" 4.1
"15% Company Transferee" 4.4
"3% Shareholder Transferee" 4.4
"3% Company Transferee" 4.4
"Founders" Preamble
"Xxxxx Muse" Preamble
"HM" Preamble
"HMC" Preamble
"HMPF" Preamble
"1945" Preamble
"1947" Preamble
"Offer Notice" 4.1
"Offered Holder" 4.1
"Offering Holder" 4.1
"Sale Process" 4.2
"Third Party Acquirer" 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 3% Event, the Xxxxx Holders and the 1947/1945 Holders
shall each be entitled to receive an annual advisory fee in the amount of U.S.$
150,000 (in the case of the Xxxxx Holders) and U.S.$ 150,000 (in the case of
the 1947/1945 Holders), payable on a quarterly basis. Through the earlier of
the third anniversary of the Closing and the equivalent of a 3% 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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Section 2.3 Voting for Directors by Founders. The Original
Founders, as holders of all of the outstanding Class F Common Shares of the
Company, shall consult with, and take into account the views of, Xxxx X. Xxxxxx
III in exercising the voting rights of such Class F Common Shares with respect
to the election of directors of the Company.
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 1947/1945 Holders, any member of the Xxxxxxxx Family or
Xxxxx Holders or any of their respective Affiliates or other entities in which
any of the foregoing 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 1947/1945 Holders, the Xxxxxxxx Family or Xxxxx 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 1947/1945 Holders, the Xxxxxxxx Family or
Xxxxx 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 1947/1945 Holders, the
Xxxxxxxx Family or Xxxxx 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 1947, 1945 and Xxxxx Muse such periodic accounting and
financial information as 1947, 1945 or Xxxxx 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, 3%
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
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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 Company Common
Shares owned by such Offering Holder, such Offering Holder shall first make an
offer to Transfer such Company Common Shares to both Holders (or the other
Holder, if the Offering Holder is a Holder) as to which a 3% 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 1947/1945 Holders or the Xxxxx Holders of all
of the Company Common Shares owned by such Offering Holder (which
amount is at least 50% of the number of Company Common Shares owned by
the 1947/1945 Holders in the aggregate or the Xxxxx Holders in the
aggregate, as applicable, 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
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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.l(a)(ii), enter into an
agreement to Transfer all of the shares specified in the Offer Notice to any
other party (a "Third 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.l(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 25% of the 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 that either the 1947/1945 Holders or the Xxxxx
Holders propose an Eligible Bring-Along Transaction, and such Offering Holder
is entitled to Transfer all of its 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 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 3% 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.
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(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 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 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 3% 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 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
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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.
(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 Xxxxx Holders, the 1947/1945 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 3% Event, may elect within 10 calendar
days of receipt of written notice thereof, to participate on a p 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 Xxxxx
Holders and the 1947/1945 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 Xxxxxxx 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
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entitled to any of the benefits of this Section 4.3 (except in the case of a
Transfer to another Founder).
Section 4.4 Transferees Bound; Confirmatory Document Required Prior
to Transfer.
(a) In the event that either the 1947/1945 Holders, or the Xxxxx
Holders propose to Transfer Company Common Shares such that the Transferee
would be a 3% 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 3% 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 3% 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
3% 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 Company Common Shares. Notwithstanding this
Section 4.4 and any other provision hereof to the contrary, a 3% 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 "3% Shareholder Transferee" shall be a Person which
acquires at least 3% 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 "3% Company Transferee" shall be a Person which
acquires at least 3% but less than 15% of the outstanding voting stock of the
Company from the Company. CEC shall not be deemed to be a 3% Shareholder or
Company Transferee.
(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,
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entered into prior to effecting the Transfer and provided to the other Holder
as to which a 15% 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
11
intermediaries or other Persons engaged by it, incurred in connection with this
Agreement and the transactions contemplated hereby.
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 1947, 1945 or to any member of the Xxxxxxxx Family:
c/o Finser Corporation
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx 0. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to the Company:
Claxson Interactive Group Inc.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(c) If to any of the Founders:
c/o Xxxxxxx Vivo-Chaneton
Claxson Interactive Group Inc.
Xxxxxxx Xxxxxxxxx Xxxxxx 0000
Xxxxxx Xxxxx, Xxxxxxxxx Cl 107 AOL
Faxsimile: (00-00) 0000-0000
12
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(d) If to any of HM, HMPF or HMC:
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: L. Xxxxx X'Xxxx, Xx., Esq.
Facsimile: (000) 000-0000
(e) If to CEC:
c/x Xxxxxxxx Television Group
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Section 5.8 Termination. This Agreement may be terminated at any
time by the mutual consent of the Holders who have not experienced a 3% Event.
Unless earlier terminated, this Agreement will terminate in full on December
31, 2007 (subject to extension in the event a
13
Sale Process is then in progress). Except to the extent earlier terminated as
to particular Sections or Holders, this Agreement shall terminate in full at
such time as both Holders have experienced a 3% 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 and CEC) 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.
14
Section 5.14 Interpretation; Absence of Presumption.
(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.
15
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.
CLAXSON INTERACTIVE GROUP INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
1947 PTVI LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President and Treasurer
1945 PTVI LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and Treasurer
HICKS, MUSE, XXXX & XXXXX LATIN
AMERICA FUND, L.P.
By: XXXXX, MUSE LATIN AMERICA & CO.,
L.P., its general partner
By: XXXXX, XXXX XX PARTNERS L.A.,
L.P., its general partner
By: XXXXX, MUSE LATIN AMERICA
FUND I INCORPORATED, its
general partner
By: /s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
Partner
HICKS, MUSE, XXXX & XXXXX LATIN AMERICA
PRIVATE FUND, L.P.
By: XXXXX, MUSE LATIN AMERICA & CO.,
L.P., its general partner
By: XXXXX, MUSE OP PARTNERS L.A.,
L.P., its general partner
By: XXXXX, MUSE LATIN AMERICA
FUND I INCORPORATED, its
general partner
By: /s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
Partner
HMLA l-SBS COINVESTORS, L.P.
By: XXXXX, MUSE OP PARTNERS, L.A.,
L.P., its general partner
By: XXXXX, MUSE LATIN AMERICA FUND
I INCORPORATED, its general
partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
Partner
XXXXXX XXXXXXX XXXXXXXX
By: /s/ Xxxxxx Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxx Xxxxxxxx
XXXXXXXXX LIMITED
By: /s/ Xxxxxxx Vivo-Chaneton
------------------------------------
Name: Xxxxxxx Vivo-Chaneton
Title:
XXXXXXX VIVO-CHANETON
By: /s/ Xxxxxxx Vivo-Chaneton
------------------------------------
IMPSAT FIBER NETWORKS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
XXX.XXX INC.
By:
------------------------------------
Name:
Title:
TOWER PLUS INTERNATIONAL
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
RC LIMITED
By: /s/ Xxxxxxx Xxxxxxx-Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx-Xxxxxx
Title:
XXXXXXX XXXXXXX-XXXXXX
By: /s/ Xxxxxxx Xxxxxxx-Xxxxxx
------------------------------------
EXHIBIT 3.1
SCHEDULE A
Founders
Name and Controlling Shareholder (if any) Number of Common Shares
IMPSAT Fiber Networks, Inc. 614,123
Xxxxxxxxx Limited 473,691
RC Limited 79,236
Xxxxxxx Xxxxxxx-Xxxxxx 96,000 (Beneficial ownership)*
Xxxxxxx Vivo-Chaneton 46,000 (Beneficial ownership)*
XXX.xxx Inc. 489,418
Tower Plus International 133,238
Xxxx X. Xxxxxx III 99,294
* For avoidance of doubt, includes El Sitio Common Shares that
are (i) underlying share options exercisable as of the date
hereof and within 60 days hereof and (ii) underlying share
options that will thereafter become exercisable.
