EXHIBIT-10.5
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Amendment"), dated as of January 1, 1999, by and among
StarMedia Network, Inc., a Delaware corporation ("the "Company"), Jack C. Chen
and Fernando J. Espuelas (the "Founders"), and the persons identified as
Purchasers on the signature pages hereto (the "Purchasers").
WHEREAS, the Company, the Founders and the Purchasers are party to
an Amended and Restated Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of August 31, 1998, pursuant to which the Company has
agreed under certain circumstances to register under the Securities Act of 1933,
as amended, certain of the Common Stock of the Company; and
WHEREAS, the Company, the Founders and the Purchasers wish to amend
Section 6 of the Registration Rights Agreement as provided herein so as to
eliminate certain incidental registration rights in connection with the initial
public offering of the Company's Common Stock; and
WHEREAS, the Founders which are party to this Amendment hold at
least 51% of the total number of shares of Founders Stock, and the Purchasers
hold at least 51% of the Restricted Stock;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized terms used but not defined herein shall have the
meaning ascribed to such terms in the Registration Rights Agreement.
2. Section 6 to the Registration Rights Agreement is hereby amended
and restated in its entirety as follows:
"6. Incidental Registration. If the Company at any time (other
than pursuant to Section 4 or 5 hereof) proposes to register any of its
Common Stock under the Securities Act for sale to the public, whether for
its own account or for the account of other security holders or both
(except with respect to (i) a registration statement on Form S-1 relating
to the initial public offering of the Company's Common Stock, or (ii)
registration statements on Forms S-4 or S-8, any successors thereto or any
other form not available for registering the Restricted Stock for sale to
the public or a Form S-1 covering solely an employee benefit plan), it
will give written notice at such time to all holders of outstanding
Restricted Stock and Founders Stock of its intention to do so. Upon the
written request of any such holder, given within thirty (30) days after
receipt of any such
notice by the Company, to register any of its Restricted Stock or Founders
Stock, as the case may be, (which request shall state the intended method
of distribution thereof), the Company will use its best efforts to cause
the Restricted Stock or Founders Stock or both, as the case may be, as to
which registration shall have been so requested, to be included in the
securities to be covered by the registration statement proposed to be
filed by the Company, all to the extent requisite to permit the sale or
other distribution by the holder (in accordance with its written request)
of such Restricted Stock or Founders Stock, as the case may be, to be so
registered; provided that the Company shall have no obligation to include
any Restricted Stock or Founders Stock in a registration statement on Form
S-1 relating to the initial public offering of the Company's Common Stock;
and further provided that nothing herein shall prevent the Company from
abandoning or delaying any such registration at any time. In the event
that any registration pursuant to this Section 6 shall be, in whole or in
part, an underwritten public offering of Common Stock, any request by a
holder pursuant to this Section 6 to register Restricted Stock or Founders
Stock, as the case may be, shall specify that either (i) such Restricted
Stock or Founders Stock, as the case may be, is to be included in the
underwriting on the same terms and conditions as the shares of Common
Stock otherwise being sold through underwriters under such registration or
(ii) such Restricted Stock or Founders Stock, as the case may be, is to be
sold in the open market without any underwriting, on terms and conditions
comparable to those normally applicable to offerings of common stock in
reasonably similar circumstances. The number of shares of Restricted Stock
or Founders Stock or both, as the case may be, to be included in such an
underwriting may be reduced (first, pro rata among the requesting holders
of Founders Stock based upon the number of shares of Founders Stock owned
by such holders and then, if necessary, pro rata among the other
requesting holders of Restricted Stock, based upon the number of shares of
Restricted Stock owned by such holders), if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company
therein; provided, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for
the account of any person other than the Company or requesting holders of
Restricted Stock or Founders Stock."
3. Except as provided herein, all of the terms, covenants and
conditions of the Registration Rights Agreement shall be unaffected hereby and
shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first above written.
STARMEDIA NETWORK, INC.
By: /s/ Jack Chen
------------------------------
Name:
Title:
FOUNDERS:
/s/ Fernando Espuelas
---------------------------------
Fernando J. Espuelas
/s/ Jack Chen
---------------------------------
Jack C. Chen
PURCHASERS:
CHASE VENTURE CAPITAL
ASSOCIATES, L.P.
By:/s/ Susan Segal
------------------------------
Name:
Title:
THE FL@TIRON FUND LLC
By: /s/ Fred Wilson
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Name: Fred Wilson
Title: Managing Member
FLATIRON FUND 1998/99 LLC
By: /s/ Fred Wilson
------------------------------
Name: Fred Wilson
Title: Managing Member
WARBURG, PINCUS EQUITY
PARTNERS, L.P.
By: /s/ Douglas Karp
------------------------------
Name:
Title:
WARBURG, PINCUS VENTURES
INTERNATIONAL, L.P.
By: /s/ Douglas Karp
------------------------------
Name:
Title: