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The Put And Call Agreement - CYCLELOGIC, INC. - 4-2-2001

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The Put And Call Agreement - CYCLELOGIC, INC. - 4-2-2001 Powered By Docstoc
					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

2 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

3 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: 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: 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

Exhibit 21.1 STARMEDIA NETWORK, INC. State of Delaware LIST OF SUBSIDIARIES StarMedia Argentina Sociedad de Responsabilidad Limitada (SRL) Buenos Aires, Argentina StarMedia do Brasil LTDA. Sao Paulo, Brazil Servicios Interactivos Limitada, Santiago, Chile StarMedia Chile Limitada Santiago, Chile StarMedia Colombia Ltda., Sociedad de Responsabilidad Limitada Bogota, Colombia SMN de Mexico, Sociedad de Responsabilidad Limitada (S. de R.L.) Mexico City, Mexico AdNet S.A. de C.V. Mexico City, Mexico Latin Red, S.L. (formerly Wass Net, S.L.) Barcelona, Spain StarMedia Network Americas, Sociedad Anonima (S.A.) Montevideo, Uruguay StarMedia S.R.L. Caracas, Venezuela StarMedia Mobile (USA), Inc. Delaware StarMedia Mobile (BVI), Inc. British Virgin Islands

EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-41962) pertaining to the StarMedia Network, Inc. 2000 Stock Incentive Plan and (Form S-8 No. 333-79255) pertaining to the 1997 Stock Option Plan, 1998 Stock Option Plan and 1999 Employee Stock Purchase Plan of StarMedia Network, Inc. of our reports dated February 16, 2001, with respect to the consolidated financial statements and schedule of StarMedia Network, Inc. included in the Annual Report (Form 10-K) for the year ended December 31, 2000.
/s/ ERNST & YOUNG LLP New York, New York

March 28, 2001