EXHIBIT 10.34
AMENDMENT NO. 1, dated as of December 29, 2000 (the "AMENDMENT"), to
the Put and Call Agreement, dated as of September 26, 2000 (this "AGREEMENT"),
by and among STARMEDIA NETWORK, INC., a Delaware corporation (the "COMPANY"),
and the several noteholders named in the attached Schedule I (individually a
"NOTEHOLDER" and collectively the "NOTEHOLDERS"). Unless otherwise defined
herein, capitalized terms used herein shall have the meaning set forth in the
Agreement.
WHEREAS, the Noteholders have purchased from Gratis1, Inc., a Delaware
corporation ("GRATIS1"), those certain 12% Convertible Promissory Notes in the
aggregate principal amount of up to $16,000,000 (collectively, the "12% NOTES");
WHEREAS, pursuant to the Agreement the Company has agreed to purchase
12% Notes in the aggregate principal amount of up to $7,000,000 (collectively,
the "GRATIS1 NOTES") in consideration for a certain number of shares of the
Company's Common Stock, $0.001 par value per share, to be issued by the Company
to the Noteholders (the "COMMON SHARES") or such other assets or property in
lieu of such Common Shares as provided in this Agreement;
WHEREAS, the Noteholers desire to be able to convert Gratis1 Notes to
shares of Gratis1 capital stock pursuant to and in accordance with the terms and
conditions set forth in such Notes (such shares acquired upon conversion of 12%
Notes being referred to herein as the "CONVERSION SHARES") and to be able to
purchase Common Shares with such Conversion Shares as though the Gratis1 Notes
with which they were acquired had not been converted;
WHEREAS, the Company will derive substantial direct and indirect
benefits from the conversion of Gratis1 Notes into Conversion Shares;
WHEREAS, in order to induce the Noteholders to convert Gratis1 Notes
into Conversion Shares, the Company desires to amend the Agreement to permit the
Company to purchase Conversion Shares from the Noteholders in consideration for
the issuance of Common Shares substantially on the terms and conditions set
forth in the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Amendment, the parties hereby agree to amend the
Agreement as follows:
Section 1. AMENDMENT. Effective as of the date of the Agreement, (i)
the definition of "Gratis1 Notes" shall be deemed to include all Conversion
Shares acquired by any Noteholder pursuant to the terms and conditions of the
Gratis1 Notes and (ii) all terms and conditions relating the purchase and sale
of Gratis1 Notes in consideration for Common Shares shall apply, MUTATIS
MUTANDIS, to the purchase and sale of Conversion Shares except that:
(a) "NOTE PURCHASE PRICE" shall mean, on any Closing Date with
respect to a Conversion Share held by any Noteholder, (i) in the event
of a Change in Control pursuant to clause (3) of the definition of
"Change in Control", the Post-Merger
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Consideration with respect to such Conversion Share or (ii) in all
other circumstances, such number of Common Shares equal to the quotient
of (x) the sum of (A) the US1.00 and (B) the Premium due with respect
to such Conversion Share DIVIDED BY (y) the Current Market Price, in
each case as of such Closing Date;
(b) "NOTEHOLDER PAYMENT AMOUNT" shall mean, on any Closing
Date with respect to any Conversion Share held by a Noteholder, an
amount equal to the product of (x) the par value of any Exchange Shares
(or any other securities issued in substitution of such shares)
received by such Noteholder multiplied by (y) the number of Exchange
Shares (or other securities issued in substitution of such shares) to
be issued to such Noteholder under the Agreement on such Closing Date
with respect to such Conversion Share.
(b) "PREMIUM" on any Closing Date with respect to any
Conversion Share shall be the sum of (x) US$1.00 multiplied by .13 per
annum for the period extending from Applicable Issuance Date to the
Applicable Conversion Date and (y) US$1.00 multiplied by .25 per annum
for the period extending from the Conversion Date until the Closing
Date. For purposes of the foregoing "APPLICABLE CONVERSION DATE" shall
mean the date on which the Conversion Share in question was purchased
through the conversion of a Gratis1 Note and the "APPLICABLE ISSUANCE
DATE" shall mean the date that such Gratis1 Note was issued.
Section 2. GOVERNING LAW . This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 3. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile counterpart
signatures to this Amendment shall be acceptable.
Section 4. EFFECTIVENESS OF AGREEMENT. Except as amended hereby, the
Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the Company and the Noteholders have executed this
Amendment to the Agreement as of the day and year first above written.
STARMEDIA NETWORK, INC.
By:
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Name:
Title:
CHASE EQUITY ASSOCIATES, LP
By: CHASE CAPITAL PARTNERS,
as Investment Manager
By:
------------------------------------
Name:
Title:
THE FLATIRON FUND 2000 LLC
By:
------------------------------------
Name:
Title:
FLATIRON ASSOCIATES II LLC
By:
------------------------------------
Name:
Title:
SCHEDULE I
NOTEHOLDERS
NAME AND ADDRESS:
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Chase Equity Associates, LP
c/o Chase Capital Partners
1221 Avenue of the Americas
40th Floor
New York, New York 10022
Telephone: (212) 899-3470
Telecopy: (212) 899-3528
Attention: Susan Segal
The Flatiron Fund 2000 LLC
c/o Flatiron Partners LLC
257 Park Avenue South
12th Floor
New York, New York 10010
Telephone: (212) 228-3800
Telecopy: (212) 228-0552
Attention: Fred Wilson
Flatiron Associates II LLC
c/o Flatiron Partners LLC
257 Park Avenue South
12th Floor
New York, New York 10010
Telephone: (212) 228-3800
Telecopy: (212) 228-0552
Attention: Fred Wilson