Exhibit 10.3
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement") dated as of ___________,
2000, is by and between AMERICA ONLINE, INC., a Delaware corporation ("AOL"),
RIVERVIEW MEDIA CORP., a British Virgin Islands corporation ("ODC"), and AMERICA
ONLINE LATIN AMERICA, INC., a Delaware corporation (the "Company").
R E C I T A L S
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A. AOL is the owner of (i) all of the outstanding capital stock of AOL
Latin America Holdings, Inc., a Delaware corporation ("Holdings"), which in turn
owns 50% of the limited liability company interests in AOL Latin America, S.L.
(f/k/a Tesjuates, S.L.), a limited liability company organized under the laws of
the Kingdom of Spain ("AOL Latin America") and (ii) 50% of the limited liability
company interests in AOL Latin America Management LLC, a Delaware limited
liability company ("Management") (collectively, the "AOL Contributed
Interests").
B. ODC (i) is the owner of all of the outstanding capital stock of
Federal Communications Corp., a corporation organized under the laws of the
Oriental Republic of Uruguay ("FedComm"), which in turn owns 50% of the limited
liability company interests in AOL Latin America and (ii) has control of all of
the equity interests in Latin American Interactive Services ("LAIS"), which in
turn owns 50% of the limited liability company interests in Management
(collectively, the "ODC Contributed Interests," and together with the AOL
Contributed Interests the "Contributed Interests").
C. AOL and ODC have formed the Company to act as a holding company that
will hold the outstanding equity interests of AOL Latin America and, indirectly,
the equity interests of the Operating Entities that will be formed to conduct
the Business in the Territory, and contemplate filing a Registration Statement
on Form S-1 with the United States Securities and Exchange Commission (the
"SEC") relative to shares of Class A Common Stock, par value $0.01 per share
(the "Class A Common Stock"), of the Company and offering such Class A Common
Stock to the public upon the effectiveness of the Registration Statement (the
"IPO").
D. In connection with the IPO, AOL and ODC have agreed to contribute to
the Company, or cause to be contributed to the Company, all of the Contributed
Interests, AOL has agreed to execute, and cause its subsidiary CompuServe
Interactive Services, Inc. ("CompuServe") to execute, license agreements with
the Company, and the Company has agreed to issue in exchange
therefore shares of its High Vote Preferred Stock and, with respect to AOL, a
warrant to acquire additional shares of the Company's capital stock, all in
accordance with the terms of this Agreement and as contemplated in the Restated
Certificate of Incorporation of the Company executed by the Company on the date
hereof (the "Certificate of Incorporation").
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants, agreements and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows (terms with initial capital
letters used herein without definition shall have the meanings given in the
Certificate of Incorporation):
1. AOL's Agreement to Contribute.
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In consideration of AOL being issued (i) _______ shares of Series B
Preferred Stock and (ii) a Warrant to purchase an aggregate of _____ shares of
Series B Preferred Stock and/or Class B Common Stock and/or Class A Common Stock
(plus a number of shares equal to the number of shares, if any, purchased by the
underwriters pursuant to their over-allotment option), in each case at an
exercise price per share equal to the price per share at which the Class A
Common Stock is sold to the public in the IPO, AOL hereby agrees to contribute,
convey and assign to the Company, upon the terms and conditions hereinafter set
forth, all of its right, title and interest in and to the AOL Contributed
Interests. In addition, AOL agrees to execute and deliver to the Company and
AOL Latin America, and to cause CompuServe to execute and deliver to the Company
and AOL Latin America, the license agreements.
2. ODC's Agreement to Contribute.
-----------------------------
In consideration of ODC being issued _______ shares of Series C Preferred
Stock, ODC hereby agrees to contribute, convey and assign to the Company, upon
the terms and conditions hereinafter set forth, all of its right, title and
interest in and to the ODC Contributed Interests.
3. Closing Date.
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The date upon which title to the Contributed Interests are so transferred
to the Company shall be referred to herein as the "Closing Date," which date
shall be the date on which the IPO has been declared effective by the SEC.
4. Contingencies.
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The obligation of AOL and ODC to so convey the Contributed Interests to the
Company and the obligation of AOL to execute and deliver the license and cause
CompuServe to execute and deliver the CompuServe license to the Company shall be
subject to the effectiveness of the IPO.
5. Representations and Warranties.
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(a) To induce ODC to enter into this Agreement, AOL represents and
warrants to ODC and the Company that:
(i) AOL is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite power, authority and legal right to enter into this
Agreement and to perform its obligations hereunder.
(ii) This Agreement has been duly authorized, executed and
delivered by AOL and constitutes the legal, valid and binding
obligation of AOL, enforceable against it in accordance with its
terms.
(iii) AOL owns all right, title and interest in and to the AOL
Contributed Interests free and clear of all liens, claims and
encumbrances whatsoever.
(b) To induce AOL to enter into this Agreement, ODC represents and
warrants to AOL and the Company as follows:
(i) ODC is a corporation duly organized, validly existing and in
good standing under the laws of the British Virgin Islands and has all
requisite power, authority to enter into this Agreement and to perform
its obligations hereunder.
(ii) This Agreement has been duly authorized, executed and
delivered by ODC and constitutes the legal, valid and binding
obligation of ODC, enforceable against it in accordance with its
terms.
(iii) ODC owns all right, title and interest in and to the ODC
Contributed Interests free and clear of all liens, claims and
encumbrances whatsoever.
6. Closing.
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The Closing Date shall occur promptly upon satisfaction of the contingency
set forth in Section 4. On the Closing Date, each of AOL and ODC shall deliver
to the Company the following:
(a) AOL shall deliver certificates representing all of the
outstanding shares of Holdings, duly endorsed and completed or with
separate stock powers or other instruments duly signed and completed to
effect the transfer of all of such shares to the Company, an Assignment of
Limited Liability Company Interests transferring to the Company its limited
liability company interests in Management, and such other instruments as
reasonably shall be necessary to assign to the Company all of its right,
title and interest in and to the AOL Contributed Interests;
(b) ODC shall deliver certificates representing all of the
outstanding shares of FedComm and LAIS, duly endorsed and completed or with
separate stock powers or other instruments duly signed and completed to
effect the transfer of all of such shares to the Company, and such other
instruments as reasonably shall be necessary to assign to the Company all
of its right, title and interest in and to the ODC Contributed Interests;
and
(c) AOL and ODC shall deliver or cause the delivery of any other
documents reasonably required by AOL, ODC or the Company to consummate the
transactions contemplated hereby.
7. Conditions to Closing.
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The following shall be conditions precedent to such transfer of the
Contributed Interests to the Company and the issuance by the Company of the
shares of High Vote Preferred Stock:
(a) The contingency set forth in Section 4 shall be satisfied; and
(b) Each and every warranty and representation of the respective
parties set forth in Section 5 shall be true and correct in all material
respects as of the Closing Date.
8. Assignment.
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None of the parties hereto may assign this Agreement or any of their rights
hereunder for any purpose whatsoever without the prior written consent of the
other parties hereto, which consent may be granted or withheld in the other
parties' sole discretion, and any purported assignment or assignments of this
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Agreement shall be absolutely void and of no force or effect.
9. Notices.
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All notices, demands, requests, consents or other communications required
or permitted to be given or made under this Agreement shall be in writing and
signed by the party giving the same and shall be deemed given or made when given
by personal service or three (3) days after mailing by certified or registered
mail, postage prepaid, to the intended recipient at the address set forth below
or any other address of which prior written notice has been given:
If to AOL: America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000, XXX
Attn: President, AOL International
Fax No.: (000) 000-0000
If to the Company: America Online Latin America, Inc.
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000, XXX
Attn: President
Fax No.: (000) 000-0000
with a copy to: Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000, XXX
Attn: Xxxxx X. Xxxxxxxx, Esquire
Fax No.: (000) 000-0000
If to ODC: Riverview Media Corp.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx'x Xxx
Road Town, Tortola
British Virgin Islands
Attn: Legal Department
Fax No.: (000) 000-0000
with a copy to: Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000, XXX
Attn: Legal Department
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Fax No.: (000) 000-0000
10. Incorporation of Prior Agreements.
---------------------------------
This Agreement contains the entire understanding of the parties hereto with
respect to the subject matter hereof, and no prior written or oral agreement or
understanding pertaining to any such matter shall be effective for any purpose.
No provision of this Agreement may be amended or added to except by an agreement
in writing signed by the parties to this Agreement or their respective
successors in interest.
11. Section Headings.
----------------
Headings at the beginning of Sections and Paragraphs of this Agreement are
solely for convenience and are not a part of this Agreement.
12. Time is of the Essence.
----------------------
Time is of the essence of this Agreement.
13. Governing Law; Forum and Venue; Construction.
--------------------------------------------
This Agreement and the transaction herein contemplated shall be construed
in accordance with and governed by the laws of the State of Delaware without
reference to its conflicts of laws provisions. The parties hereto agree that,
to the extent permissible under applicable laws and rules of court procedure,
any action or proceeding between or among any of the parties with respect to
this Agreement shall be commenced only in a court of competent jurisdiction in
the State of Delaware, and in no other jurisdiction. The parties hereto have
participated fully in the negotiation and preparation of this Agreement and,
accordingly, this Agreement shall not be more strictly construed against any one
of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
AMERICA ONLINE, INC.
By: /s/ Xxxxxx Xxxxx, Xx.
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Name: Xxxxxx Xxxxx, Xx.
Title: Senior Vice President and
General Manager International
RIVERVIEW MEDIA CORP.
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Attorney-in-fact
AMERICA ONLINE LATIN AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Dcdocs:164447.6(3$vz06!.DOC)
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