SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
INFORMATION TO BE INCLUDED IN
STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 8)
America Online Latin America, Inc.
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(Name of Issuer)
Class A Common Stock, par value $0.01 per share
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(Title of Class of Securities)
02365B100
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(CUSIP Number)
Paul T. Cappuccio, Esq.
Executive Vice President and General Counsel
AOL Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
(212) 484-8000
Copy to:
Peter S. Malloy, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 30, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box |_|.
CUSIP No. 02365B100 Page 2 of 20
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
AOL Time Warner Inc. 13-4099534
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--------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [x]
(b) [ ]
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3 SEC USE ONLY:
--------- ----------------------------------------------------------------------
--------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS:
WC
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--------- ----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
--------- ----------------------------------------------------------------------
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6 CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
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-------------------- ---------- ------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 55,015,749 (1)
EACH -----------------------------------------------------------
REPORTING -----------------------------------------------------------
PERSON WITH SHARED VOTING POWER
8
136,551,706 (2)
-----------------------------------------------------------
-----------------------------------------------------------
SOLE DISPOSITIVE POWER
9
55,015,749
-----------------------------------------------------------
-----------------------------------------------------------
SHARED DISPOSITIVE POWER
10
136,851,706 (3)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
191,867,455
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [x]
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-------------------------------
1 Represents 44,150,106 shares of Class A Common Stock, par value $0.01 per
share ("Class A Common Stock"), of America Online Latin America, Inc.
("AOL-LA") into which (ultimately) the $160,000,000 11% senior convertible
notes owned by AOL Time Warner Inc. ("AOL Time Warner"), are immediately
convertible at an initial conversion price of $3.624 plus 10,865,643 shares
of Class A Common Stock into which (ultimately) 10,865,643 shares of Series
B Redeemable Convertible Preferred Stock owned by AOL Time Warner are
immediately convertible on a one-for-one basis.
2 Calculated pursuant to Rule 13d-3, includes (i) 40,169,780 shares of Class
A Common Stock owned by America Online, Inc. ("AOL"), (ii) 79,840,676
shares of Class A Common Stock into which (ultimately) 79,840,676 shares of
Series B Redeemable Convertible Preferred Stock owned by AOL are
immediately convertible on a one-for-one basis and (iii) 16,541,250 shares
of Class A Common Stock issuable upon exercise of AOL's immediately
exercisable warrant.
3 Calculated pursuant to Rule 13d-3, includes the 136,551,706 shares
described in number 8 above plus 300,000 shares of Class A Common Stock
issuable upon exercise of certain employee options issued by AOL-LA.
CUSIP No. 02365B100 Page 3 of 20
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
66.9% (4)
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14 TYPE OF REPORTING PERSON:
HC, CO
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-------------------------------
4 For purposes of beneficial ownership calculation under Rule 13d-3, the
number of outstanding shares includes: (i) the 135,135,137 shares of Class
A Common Stock outstanding (including 40,169,780 shares of Class A Common
Stock owned by AOL) as of January 13, 2003 based on information provided to
AOL and AOL Time Warner by AOL-LA, (ii) 79,840,676 shares of Class A Common
Stock into which (ultimately) 79,840,676 shares of Series B Redeemable
Convertible Preferred Stock owned by AOL are immediately convertible on a
one-for-one basis, (iii) 16,541,250 shares of Class A Common Stock issuable
upon exercise of AOL's immediately exercisable warrant, (iv) 300,000 shares
of Class A Common Stock issuable upon exercise of certain AOL-LA employee
options, (v) 44,150,106 shares of Class A Common Stock issuable upon
conversion of AOL Time Warner's $160,000,000 11% senior convertible notes
and (vi) 10,865,643 shares of Class A Common Stock into which (ultimately)
10,865,643 shares of Series B Redeemable Convertible Preferred Stock owned
by AOL Time Warner are immediately convertible on a one-for-one basis.
CUSIP No. 02365B100 Page 4 of 20
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
America Online, Inc. 54-1322110
--------- ----------------------------------------------------------------------
--------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) [x]
(b) [ ]
--------- ----------------------------------------------------------------------
--------- ----------------------------------------------------------------------
3 SEC USE ONLY:
--------- ----------------------------------------------------------------------
--------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS:
Not Applicable
--------- ----------------------------------------------------------------------
--------- ----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION:
Delaware
--------- ----------------------------------------------------------------------
-------------------- -------- --------------------------------------------------
NUMBER OF SOLE VOTING POWER
SHARES 7
BENEFICIALLY
OWNED BY 0
EACH -----------------------------------------------------------
REPORTING -----------------------------------------------------------
PERSON WITH
8 SHARED VOTING POWER
136,551,706 (1)
-----------------------------------------------------------
-----------------------------------------------------------
SOLE DISPOSITIVE POWER
9
0
-----------------------------------------------------------
-----------------------------------------------------------
SHARED DISPOSITIVE POWER
10
136,851,706 (2)
--------------------------------------------------------------------------------
--------- ----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
136,851,706
--------- ----------------------------------------------------------------------
--------- ----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES: [ x ]
--------- ----------------------------------------------------------------------
-------------------------------
1 Calculated pursuant to Rule 13d-3, includes (i) 40,169,780 shares of Class
A Common Stock owned by AOL, (ii) 79,840,676 shares of Class A Common Stock
in which (ultimately) 79,840,676 shares of Series B Redeemable Convertible
Preferred Stock owned by AOL are immediately convertible on a one-for-one
basis and (iii) 16,541,250 shares of Class A Common Stock issuable upon
exercise of AOL's immediately exercisable warrant.
2 Calculated pursuant to Rule 13d-3, includes the 136,551,706 shares
described in number 8 above plus 300,000 shares of Class A Common Stock
issuable upon exercise of certain AOL-LA employee options.
CUSIP No. 02365B100 Page 5 of 20
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
59.0% (3)
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14 TYPE OF REPORTING PERSON:
CO
--------- ----------------------------------------------------------------------
-------------------------------
3 For purposes of beneficial ownership calculation under Rule 13d-3, the
number of outstanding shares includes: (i) the 135,135,137 shares of Class
A Common Stock outstanding (including 40,169,780 shares of Class A Common
Stock owned by AOL), (ii) 79,840,676 shares of Class A Common Stock into
which (ultimately) 79,840,676 shares of Series B Redeemable Convertible
Preferred Stock owned by AOL are immediately convertible on a one-for-one
basis, (iii) 16,541,250 shares of Class A Common Stock issuable
(ultimately) upon exercise of AOL's immediately exercisable warrant and
(iv) 300,000 shares of Class A Common Stock issuable upon exercise of
certain AOL-LA employee options.
CUSIP No. 02365B100 Page 6 of 20
AOL Time Warner Inc., a Delaware corporation ("AOL Time Warner"), and its
wholly-owned subsidiary, America Online, Inc., a Delaware corporation ("AOL")
(collectively, the "Reporting Persons"), hereby file this Amendment No. 8
("Amendment No. 8") to amend and supplement the statement on Schedule 13D
originally filed on August 22, 2000 and amended on January 22, 2001 and February
27, 2001, further amended and restated in its entirety on April 13, 2001 and
further amended on April 5, 2002 ("Amendment No. 4"), June 17, 2002, August 29,
2002 ("Amendment No. 6") and October 18, 2002 ("Amendment No. 7") (as previously
so amended, the "Statement"), with respect to the shares of Class A Common
Stock, par value $0.01 per share (the "Class A Common Stock"), of America Online
Latin America, Inc., a Delaware corporation ("AOL-LA"). As provided in the Joint
Filing Agreement filed as Exhibit 13 to Amendment No. 4, the Reporting Persons
have agreed pursuant to Rule 13d-1(k) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), to file one statement on Schedule 13D with
respect to their beneficial ownership of the Class A Common Stock.
Unless otherwise expressly set forth herein, capitalized terms not defined
in this Amendment No. 8 have the meanings given to such terms in the Statement.
Item 1. Security and Issuer
This Amendment No. 8 relates to the Class A Common Stock of AOL-LA. The
address of the principal executive office of AOL-LA is 6600 N. Andrews Avenue,
Suite 500, Fort Lauderdale, Florida 33309.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 of the Statement is hereby amended by adding the following as the
last 4 paragraphs thereof:
On October 18, 2002, AOL Time Warner purchased at par value $9,500,000
aggregate principal amount of AOL-LA's 11% Senior Convertible Notes due 2007
(the "Sixth Tranche Notes") pursuant to a Note Purchase Agreement described in
Items 4 and 6 using funds from AOL Time Warner's working capital.
On November 27, 2002, AOL Time Warner purchased at par value $12,200,000
aggregate principal amount of AOL-LA's 11% Senior Convertible Notes due 2007
(the "Seventh Tranche Notes") pursuant to a Note Purchase Agreement described in
Items 4 and 6 using funds from AOL Time Warner's working capital.
On December 30, 2002, AOL Time Warner purchased at par value $67,000,000
aggregate principal amount of AOL-LA's 11% Senior Convertible Notes due 2007
(the "Eighth Tranche Notes") pursuant to a Note Purchase Agreement described in
Items 4 and 6 using funds from AOL Time Warner's working capital. Following this
purchase, AOLTW has no further obligation to purchase notes under the Note
Purchase Agreement.
In accordance with the terms of the Tranche Notes (as defined in Item 5),
on December 31, 2002, AOL-LA issued 5,183,668 shares of Series B Preferred Stock
to AOL Time Warner as payment of interest due as of such date on $160,000,000
aggregate principal amount of AOL-LA's 11% Senior Convertible Notes due 2007
held by AOL Time Warner.
CUSIP No. 02365B100 Page 7 of 20
On January 10, 2003, AOL converted 32,328,736 shares of Series B Preferred
Stock into 32,328,736 shares of Class A Common Stock and, on January 13, 2003,
AOL converted an additional 3,841,044 shares of Series B Preferred Stock into
3,841,044 shares of Class A Common Stock (collectively, the "Conversion"). The
Conversion was made in response to requests received from AOL-LA that AOL
convert a sufficient number of shares of preferred stock into shares of Class A
Common Stock to assist AOL-LA in its efforts to remain listed on the Nasdaq
SmallCap Market (the "SmallCap Market"). Similar requests were made to ODC and,
in response, ODC converted 28,508,177 shares of Series C Preferred Stock into
28,508,177 shares of Class A Common Stock on January 10, 2003, and 3,387,115
shares of Series C Preferred Stock into 3,387,115 shares of Class A Common Stock
on January 13, 2003. The Conversion reduces the number of shares of Series B
Preferred Stock required to be owned by AOL, AOL Time Warner and their wholly
owned affiliates and employees in order to avoid a "Class B Triggering Event"
(as defined in the Charter) by the number of shares of Series B Preferred Stock
so converted.
Item 4. Purpose of Transaction
Item 4 of the Statement is hereby amended by deleting subparagraph 8(c) and
adding the new subparagraph 8(c) in lieu thereof:
(c) unless otherwise required under Delaware law or waived by holders of a
majority of the outstanding shares of B Stock or C Stock, approving (i) the
merger, consolidation, dissolution or liquidation of AOL-LA, (ii) any issuance
of, or change in, any of the capital stock of AOL-LA, (iii) the transfer of any
material assets of AOL-LA, (iv) any transactions or series of transactions in
which AOL-LA acquires control over any other person, (v) the establishment of
any entity by AOL-LA, (vi) the adoption or modification of business plans,
annual budgets, forecasts or business projections of AOL-LA (vii) AOL-LA's
establishment of, or any significant modification to, any investment or cash
management policy, (viii) AOL-LA's discontinuance of any material business
activity, (ix) AOL-LA's entering into any partnership, joint venture or
consortium, (x) AOL-LA's entering into material agreements outside the ordinary
course of its business, and (xi) AOL-LA's filing for bankruptcy or its decision
not to prevent or oppose an involuntary filing for bankruptcy.
Item 4 of the Statement is hereby amended by deleting paragraph 11 and
adding the new paragraph 11 in lieu thereof:
Pursuant to the Charter, AOL-LA established a two-member committee of the
Board consisting of one Class B Director and one Class C Director (the "Special
Committee"). The Special Committee will evaluate corporate actions such as:
(a) amendments to the Charter, By-laws, the Amended and Restated
Stockholders' Agreement or the Amended and Restated AOL-ODC
Registration Rights Agreement;
(b) the merger, consolidation, dissolution or liquidation of AOL-LA;
(c) any issuance of, or change in, any capital stock of AOL-LA;
(d) the transfer of any material assets of AOL-LA;
CUSIP No. 02365B100 Page 8 of 20
(e) any transaction or series of transactions involving the acquisition of
any interest in another entity;
(f) the entry into any contract relating to advertising, electronic
commerce, partner marketing, content, brand marketing or subscriber
acquisition (the "Core Contracts") involving cash payments to AOL-LA
in excess of $1,500,000 or non-cash payments to AOL-LA, or cash
payments by AOL-LA, in excess of $750,000;
(g) the entry into any Core Contract to purchase media advertising for
amounts in excess of $2,000,000;
(h) the entry into any Core Contract to purchase compact discs for the
marketing of the products and services of AOL-LA for amounts in excess
of $5,000,000;
(i) the entry into any contract relating to the provision of
telecommunications connectivity;
(j) the entry into any contract, other than a Core Contract or a contract
relating to the provision of telecommunications connectivity,
involving payments in excess of $250,000;
(k) any transaction involving any debt incurred by AOL-LA (other than
trade payables incurred in the ordinary course of business, credit
card indebtedness incurred in the ordinary course of business or
borrowings under credit facilities approved by the Board) and the
establishment of any credit facility of AOL-LA;
(l) any transaction or series of transactions in which AOL-LA acquires
control over any other person;
(m) any transaction or series of transactions which would result in
capital expenditures in excess of $250,000;
(n) any future expenditure in respect of a particular line item in
AOL-LA's most recent budget or forecast to the extent that AOL-LA has
exceeded such line item;
(o) the entry into any contract with a term in excess of three years;
(p) the declaration of any dividends on securities of AOL-LA;
(q) the selection of nominees to be recommended by the Board for election
by all outstanding shares of AOL-LA capital stock voting together;
(r) the admission of any Strategic Partners;
(s) the establishment of an executive committee and the appointment or
removal of any member of a committee of the Board;
CUSIP No. 02365B100 Page 9 of 20
(t) the launch by AOL-LA of AOL-branded TV- and wireless-based online
services in Latin America;
(u) any third-party transaction or litigation relating to AOL-branded TV-
and wireless-based online services or any other platform other than
narrow-band PC access online services;
(v) the establishment of any entity by AOL-LA;
(w) litigation by AOL-LA that involves amounts in excess of $100,000 or
that is adverse to the rights of either AOL or the Cisneros Group;
(x) the adoption or modification of the business plans, annual budgets,
forecasts or business projections of AOL-LA;
(y) AOL-LA's establishment of, or any significant modification to, any
investment or cash management policies;
(z) AOL-LA's discontinuance of any material business activity;
(aa) AOL-LA's entering any partnership, joint venture or consortium;
(bb) AOL-LA's issuance of press releases containing material non-public
information;
(cc) AOL-LA's entering into agreements outside of the ordinary course of
its business;
(dd) AOL-LA's filing for bankruptcy or its decision not to prevent or
oppose any involuntary filing for bankruptcy;
(ee) the adoption or material amendment to any employee benefit plan (other
than plans covering health, medical or life insurance) or executive
compensation plan or severance payment;
(ff) the hiring or firing of vice presidents or above, or the increasing of
the compensation of directors or above, or the promotion of any
personnel to any position of director or above;
(gg) the expansion of AOL-LA's business beyond its core business
activities in Latin America;
(hh) the public release of any material new product or service by AOL-LA;
(ii) any transaction between AOL-LA and either AOL or ODC; and
(jj) any change to the terms of outstanding stock rights that have been
granted pursuant to an approved stock option plan.
CUSIP No. 02365B100 Page 10 of 20
Item 4 of the Statement is hereby amended by deleting paragraph 18 and
adding the following new paragraph 18 in lieu thereof:
AOL Time Warner has entered into a Note Purchase Agreement with AOL-LA,
dated as of March 8, 2002 (as amended from time to time, the "Note Purchase
Agreement"), for the purchase by AOL Time Warner (and/or its permitted assigns)
of up to $160,000,000 aggregate principal amount of AOL-LA's 11% Senior
Convertible Notes due 2007 (the "Initial Notes"). On March 11, 2002, AOL Time
Warner purchased an initial tranche of $17,300,000 aggregate principal amount of
the Initial Notes from AOL-LA (the "First Tranche Notes"). On May 20, 2002, AOL
Time Warner and AOL-LA executed an amendment to the Note Purchase Agreement (the
"Note Purchase Agreement Amendment") to substitute a revised form of Certificate
of Amendment (as defined in Item 6) for the form attached to the Note Purchase
Agreement initially executed. The Note Purchase Agreement Amendment is attached
to this Statement as Exhibit 14. As more fully discussed in Item 6, after
obtaining shareholder approval at its Annual Meeting of Stockholders held on
July 31, 2002, AOL-LA filed the Certificate of Amendment with the Secretary of
State of the State of Delaware on August 5, 2002. Among other things, the
Certificate of Amendment increased the number of authorized shares and adjusted
the liquidation preferences of the Series B Preferred Stock.
Item 4 of the Statement is hereby amended by deleting paragraph 21 and
adding the following new paragraph in lieu thereof:
AOL Time Warner's purchase of Initial Notes is part of a broader investment
history with AOL-LA that included the Reorganization, AOL's purchase on August
11, 2000 of 4,000,000 shares of Class A Common Stock in the Offering and AOL's
purchases of additional preferred stock of AOL-LA under the Stock Purchase
Agreement in 2001. The Reporting Persons' investments in AOL-LA are expected to
increase as a result of the payment from time to time of interest on the Initial
Notes in the form of shares of AOL-LA capital stock and the payment from time to
time of dividends on preferred stock held by the Reporting Persons in the form
of additional shares of capital stock. See Item 6.
Item 4 of the Statement is hereby amended by deleting the last nine
paragraphs thereof and adding the following in lieu thereof:
The Conversion was made in response to requests received from AOL-LA that
AOL convert a sufficient number of shares of preferred stock into shares of
Class A Common Stock to assist AOL-LA in its efforts to remain listed on the
SmallCap Market.
The Reporting Persons intend to review their investment in AOL-LA on a
continuing basis and, subject to the limitations set forth in the Second Amended
and Restated Stockholders' Agreement, reserve the right to (i) acquire
additional securities of and increase their level of investment and control in
AOL-LA, through acquisitions in the open market or in privately negotiated
transactions with AOL-LA or third parties or otherwise, (ii) maintain their
holdings at current levels or (iii) sell or otherwise dispose of all or a
portion of their holdings in the open market or in privately negotiated
transactions or otherwise or reduce their level of investment or control in
AOL-LA. Any such actions will depend upon, among other things: the availability
of such securities for purchase, or the ability to sell such securities, at
satisfactory price levels; the continuing evaluation of AOL-LA's business,
financial condition, operations and prospects; general market, economic and
other conditions; the relative attractiveness of
CUSIP No. 02365B100 Page 11 of 20
alternative business and investment opportunities; the availability of
financing; the actions of the management, Board and controlling stockholders of
AOL-LA; and other future developments.
As part of their ongoing review, the Reporting Persons may have additional
discussions with third parties, including other stockholders, or with the board
of directors or management of AOL-LA regarding the foregoing.
Except as set forth elsewhere in this Amendment No. 8, neither AOL Time
Warner nor AOL has any current plans or proposals which relate to or would
result in any of the actions requiring disclosure pursuant to Item 4 of Schedule
13D, although AOL Time Warner and AOL do not rule out the possibility of
effecting or seeking to effect any such actions in the future.
References to, and descriptions of, the Second Amended and Restated
Stockholders' Agreement, the Note Purchase Agreement, the Initial Notes, the PIK
Notes, the Second Amended and Restated AOL-ODC Registration Rights Agreement,
the Voting Agreements and the Conversion Agreement are qualified in their
entirety by reference to the copies of such documents included as exhibits to
Amendment No. 4, Amendment No. 6 and Amendment No. 7, and are incorporated in
this Item 4 in their entirety where such references and descriptions appear.
Item 5. Interest in Securities of the Issuer
Item 5 of the Statement is hereby amended and restated to read in its
entirety as follows:
The information set forth or incorporated by reference in Items 2, 3, 4, 6
and 7 is hereby incorporated herein by reference.
As of January 13, 2003, based on information provided to AOL and AOL Time
Warner by AOL-LA, there were 135,135,137 shares of Class A Common Stock
outstanding. No shares of AOL-LA's Class B Common Stock or Class C Common Stock
were outstanding. For purposes of Rule 13d-3 under the Exchange Act, the Class A
Common Stock issuable, directly or indirectly, upon conversion of the Series B
Preferred Stock currently held by AOL, upon exercise of the AOL Warrant, and
upon exercise by the Employees (defined below) of their options, (i) with
respect to percentage ownership calculations made herein for AOL, increase the
number of Class A Common Stock outstanding to 231,817,0631 and (ii) together
with the 55,015,749 shares of Class A Common Stock issuable, directly or
indirectly, upon conversion of (x) the First Tranche Notes, the Second Tranche
Notes, the Third Tranche Notes, the Fourth Tranche Notes, the Fifth Tranche
Notes, the Sixth Tranche Notes, the Seventh Tranche Notes and the Eighth Tranche
Notes (collectively, the "Tranche Notes") and (y) the 10,865,643 shares of
Series B Preferred Stock issued to AOL Time Warner by AOL-LA as payment of
interest due on the Tranche Notes with respect to percentage ownership
calculations made herein for AOL Time Warner, increase the number of Class A
Common Stock outstanding to 286,832,812.
-------------------------------
1 Includes (i) the 135,135,137 shares of Class A Common Stock outstanding
(including 36,328,736 shares of Class A Common Stock owned by AOL), (ii)
79,840,676 shares of Class A Common Stock into which (ultimately)
79,840,676 shares of Series B Redeemable Convertible Preferred Stock owned
by AOL are immediately convertible on a one-for-one basis, (iii) 16,541,250
shares of Class A Common Stock issuable upon exercise of AOL's immediately
exercisable warrant and (iv) 300,000 shares of Class A Common Stock
issuable upon exercise of certain AOL-LA employee options.
CUSIP No. 02365B100 Page 12 of 20
As of the date hereof, the Reporting Persons (i) beneficially own
40,169,780 shares of Class A Common Stock held by AOL and (ii) pursuant to Rule
13d-3(a) promulgated under the Exchange Act, may be deemed to beneficially own
an additional 96,381,926 shares of Class A Common Stock, which are issuable upon
conversion, directly or indirectly, of all of the shares of Series B Preferred
Stock held by AOL and upon exercise of the AOL Warrant. Shares of Series B
Preferred Stock are convertible into shares of Class B Common Stock at any time,
initially on a one share-for-one share basis, and such Class B Common Stock is
convertible into Class A Common Stock at any time, initially on a one
share-for-one share basis.
Pursuant to Rule 13d-3(a) promulgated under the Exchange Act, the Reporting
Persons may also be deemed to beneficially own options to purchase an aggregate
of 300,000 shares of Class A Common Stock. As stated in Item 6 below, upon the
consummation of AOL-LA's initial public offering, Michael Lynton, J. Michael
Kelly, and Gerald Sokol, Jr., employees of AOL or AOL Time Warner, were each
granted an option to purchase 60,000 shares of Class A Common Stock. Janice
Brandt and Joseph Ripp, employees of AOL (each an "employee" and along with
Messrs. Lynton, Kelly and Sokol, the "Employees"), were each granted an option
to purchase 60,000 shares of Class A Common Stock in connection with their
appointment to the board of directors of AOL-LA. Under the Reporting Persons'
conflicts of interest standards, each such Employee must transfer the economic
benefit of his or her options to AOL Time Warner or AOL, as applicable. Although
each such Employee is the record holder of the option, AOL and AOL Time Warner
hold or share the disposition power with respect to all of the shares of Class A
Common Stock underlying the options. The filing of Amendments to the Statement,
however, shall not be construed as an admission for the purposes of Sections
13(d) and 13(g) of the Exchange Act and Regulation 13D-G promulgated thereunder
that any of such Employees is the beneficial owner of any securities of AOL-LA
other than the options and shares of Class A Common Stock underlying the options
issued to such Employee.
Pursuant to Rule 13d-3(a) promulgated under the Exchange Act, AOL Time
Warner may also be deemed to beneficially own an additional 55,015,749 shares of
Class A Common Stock which are issuable upon conversion, directly or indirectly,
of: (i) the Tranche Notes at the conversion price of $3.624 per share, as the
same may be adjusted in accordance with the terms of the Tranche Notes and (ii)
the shares of Series B Preferred Stock issued to AOL Time Warner by AOL-LA as
payment of interest due on the Tranche Notes. As further described in Item 6,
the Tranche Notes are convertible at any time into Applicable Shares (as defined
in Item 6 of the Statement), which may be shares of Series B Preferred Stock or
Class A Common Stock, in any case at a conversion price of $3.624 per share.
AOL and AOL Time Warner have shared power to vote and dispose of 40,169,780
shares of Class A Common Stock held by AOL, the 79,840,676 shares of Class A
Common Stock issuable upon conversion, directly or indirectly, of all of the
Series B Preferred Stock held by AOL, and 16,541,250 shares of Class A Common
Stock issuable upon exercise of the AOL Warrant. AOL and AOL Time Warner share
the power to dispose of the 300,000 shares of Class A Common Stock issuable upon
exercise of the stock options that were granted to the Employees. AOL Time
Warner has sole power to vote and dispose of the 55,015,749 shares of Class A
Common Stock that are issuable upon conversion, directly or indirectly, of both
the Tranche Notes acquired by AOL Time Warner pursuant to the Note Purchase
Agreement and the shares of Series B Preferred Stock issued to AOL Time Warner
as payment of interest due on the Tranche Notes.
CUSIP No. 02365B100 Page 13 of 20
Consequently, under Rule 13d-3(a), upon conversion of the B Stock held by
AOL, the exercise of the AOL Warrant and the exercise of the stock options
granted to the Employees, AOL would beneficially own 136,851,706 shares of Class
A Common Stock in the aggregate, or approximately 59.0% of the shares of Class A
Common Stock currently outstanding. Upon conversion of the B Stock held by AOL,
the exercise of the AOL Warrant, the exercise of the stock options granted to
the Employees, the conversion of the B Stock held by AOL Time Warner and the
conversion of the Tranche Notes, AOL Time Warner would beneficially own
191,867,455 shares of Class A Common Stock in the aggregate, or approximately
66.9% of the shares of Class A Common Stock currently outstanding. However,
assuming (i) the conversion of all B Stock and C Stock, (ii) the conversion of
all of the Tranche Notes and (iii) the exercise and conversion of all
outstanding warrants and stock options, AOL and AOL Time Warner would
beneficially own approximately 37.3% and 52.4%, respectively, of the 366,471,514
shares of Class A Common Stock of AOL-LA that would be issued and outstanding.
Pursuant to Rule 13d-5(b)(1) promulgated under the Exchange Act, to the
extent a "group" is deemed to exist by virtue of the Second Amended and Restated
Stockholders' Agreement, the ODC Voting Agreement and the Second Amended and
Restated AOL-ODC Registration Rights Agreement (each as defined in Item 6 of the
Statement), the Reporting Persons may be deemed to have beneficial ownership,
for purposes of Sections 13(d) and 13(g) of the Exchange Act, of all of the
equity securities of AOL-LA beneficially owned by the Cisneros Group. As of the
date hereof, the Cisneros Group beneficially owns 35,895,292 shares of Class A
Common Stock, 79,518,702 shares of Series C Preferred Stock, which represents
all of such Series C Preferred Stock outstanding, and currently exercisable
options to purchase 120,000 shares of Class A Common Stock. Shares of Series C
Preferred Stock are convertible into AOL-LA's Class C Common Stock at any time,
initially on a one share-for-one share basis, and such Class C Common Stock is
convertible into Class A Common Stock at any time, initially on a one
share-for-one share basis. As of the date hereof, the Cisneros Group
beneficially owns an aggregate of 115,533,994 shares of Class A Common Stock, or
approximately 31.5% of the 366,471,514 shares of Class A Common Stock that would
be issued and outstanding, assuming (i) the conversion of all B Stock and C
Stock, (ii) the conversion of all of the Tranche Notes and (iii) the exercise
and conversion of all outstanding warrants and stock options. The Reporting
Persons disclaim beneficial ownership of any AOL-LA securities owned directly or
indirectly by the Cisneros Group.
Pursuant to Rule 13d-5(b)(1) promulgated under the Exchange Act, to the
extent a "group" is deemed to exist by virtue of the Banco Itau Registration
Rights Agreement and the Itau Voting Agreement (each as defined in Item 6 of the
Statement), the Reporting Persons may be deemed to have beneficial ownership,
for purposes of Sections 13(d) and 13(g) of the Exchange Act, of all of the
equity securities of AOL-LA beneficially owned by the Banco Itau Reporting
Persons. As of the date hereof, the Banco Itau Reporting Persons beneficially
own 35,937,840 shares of Class A Common Stock, or approximately 9.8% of the
366,471,514 shares of Class A Common Stock that would be issued and outstanding,
assuming (i) the conversion of all B Stock and C Stock, (ii) the conversion of
all of the Tranche Notes and (iii) the exercise and conversion of all
outstanding warrants and stock options. The Reporting Persons disclaim
beneficial ownership of any AOL-LA securities owned directly or indirectly by
the Banco Itau Reporting Persons.
CUSIP No. 02365B100 Page 14 of 20
Other than as set forth herein, to the best of the Reporting Persons'
knowledge as of the date hereof, (i) neither the Reporting Persons nor any
subsidiary or affiliate of the Reporting Persons nor any of the Reporting
Persons' executive officers or directors, beneficially owns any shares of Class
A Common Stock, and (ii) there have been no transactions in the shares of Class
A Common Stock effected during the past 60 days by the Reporting Persons, nor to
the best of the Reporting Persons' knowledge, by any subsidiary or affiliate of
the Reporting Persons or any of the Reporting Persons' executive officers or
directors.
References to, and descriptions of, the Second Amended and Restated
Stockholders' Agreement, the Note Purchase Agreement, the Voting Agreements and
the Second Amended and Restated AOL-ODC Registration Rights Agreement are
qualified in their entirety by reference to the copies of such documents
included as exhibits to Amendment No. 4 and Amendment No. 6 and are incorporated
in this Item 5 in their entirety where such references and descriptions appear.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer
Item 6 of the Statement is hereby amended by deleting the last nine
paragraphs thereof and adding the following in lieu thereof:
AOL entered into a Preferred Stock Conversion Agreement with each of ODC
and AOL-LA, dated as of October 3, 2002 (as amended from time to time, the
"Conversion Agreement"), pursuant to which AOL and ODC were obligated to convert
a certain number of their shares of Series B Preferred Stock and Series C
Preferred Stock, as applicable, into shares of Class A Common Stock, subject to
certain conditions. No conversion of Series B Preferred Stock or Series C
Preferred Stock, however, was or will be required under the Conversion Agreement
because on the date on which any conversion thereunder was to have occurred, the
closing bid price of the Class A Common Stock exceeded the threshold below which
any conversion would have been required. The Conversion (discussed in greater
detail in Item 4) was not related to or required by the Conversion Agreement.
In connection with the Conversion Agreement, AOL, AOLTW and ODC entered
into a voting agreement pursuant to which each agreed to vote in favor of a
charter amendment to reduce their respective B Stock and C Stock ownership
thresholds (below which they lose their preferred stock class rights) by the
number of shares of preferred stock that are converted into Class A Common Stock
at the request of AOL-LA in order to meet the continued listing requirements of
the NASDAQ Stock Market. The charter amendment also provides that upon a sale or
transfer by AOL or ODC to any person other than their respective wholly-owned
affiliates (as defined in the Charter) of Class A Common Stock in an amount
which exceeds the amount of Class A Common Stock previously acquired or acquired
at any time in the future by AOL or ODC, as the case may be, other than through
the conversion of B Stock or C Stock, as applicable, the required ownership
thresholds of AOL or ODC, as the case may be, will increase on a one-for-one
basis until such threshold reaches its original amount. This charter amendment
was filed with the Secretary of State of the State of Delaware on December 23,
2002 and is attached hereto as Exhibit 19.
References to, and descriptions of, the Note Purchase Agreement, the Second
Amended and
CUSIP No. 02365B100 Page 15 of 20
Restated AOL-ODC Registration Rights Agreement, the Second Amended and Restated
Stockholders Agreement, the Voting Agreements and the Conversion Agreement are
qualified in their entirety by reference to the copies of such documents
included as exhibits to Amendment No. 4, Amendment No. 6 and Amendment No. 7,
which are incorporated in this Item 6 in their entirety where such references
and descriptions appear.
To the best of the Reporting Persons' knowledge, except as described in the
Statement and this Amendment No. 8, there are at present no other contracts,
arrangements, understandings or relationships among the persons named in Item 2
above, and between any such persons and any person, with respect to any
securities of AOL-LA.
The information set forth or incorporated by reference in Items 2, 3, 4, 5
and 7 is hereby incorporated by reference.
Item 7. Material to be Filed as Exhibits
Item 7 of the Statement is hereby amended by adding the following as the
last Exhibit thereof:
19. Certificate of Amendment of Fourth Restated Certificate of
Incorporation of America Online Latin America, Inc., filed with the
Secretary of State of the State of Delaware on December 23, 2002.
CUSIP No. 02365B100 Page 16 of 20
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: January 23, 2003
AOL TIME WARNER INC.
By: /s/ Wayne H. Pace
----------------------------------
Name: Wayne H. Pace
Title: Executive Vice President and
Chief Financial Officer
AMERICA ONLINE, INC.
By: /s/ Joseph A. Ripp
----------------------------------
Name: Joseph A. Ripp
Title: Vice Chairman and
Acting Chief Financial Officer
CUSIP No. 02365B100 Page 17 of 20
SCHEDULE I
ADDRESSES OF THE CISNEROS GROUP AND THE BANCO ITAU GROUP
AND THE BANCO ITAU REPORTING PERSONS
------------------------------------
Atlantis Investments LLC
c/o Finser Corporation
550 Biltmore Way, Suite 900
Coral Gables, FL 33134
Aspen Investments LLC
c/o Finser Corporation
550 Biltmore Way, Suite 900
Coral Gables, FL 33134
Banco Itau, S.A.
176 Rua Boa Vista
01014-913 Sao Paulo, Brazil
Banco Banerj, S.A.
Rua da Alfandega 28, 9th Floor
Rio de Janeiro, Brazil
Itau Bank Limited
Ansbacher House, 3rd Floor
20 Genesis Close -P.O. Box 10141
Grand Cayman
Cayman Islands, B.W.I.
Banco Itau, S.A.-Cayman Branch
Ansbacher House, 3rd Floor
20 Genesis Close -P.O. Box 10141
Grand Cayman
Cayman Islands, B.W.I.
CUSIP No. 02365B100 Page 18 of 20
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS OF AOL TIME WARNER
---------------------------------------------------
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of AOL
Time Warner. Except as indicated below, each such person is a U.S. citizen, and
the business address of each such person is 75 Rockefeller Plaza, New York, New
York 10019.
Board of Directors
------------------
Name Title and Present Principal Occupation
----- --------------------------------------
Stephen M. Case Chairman of the Board; AOL Time Warner Inc.
Richard D. Parsons Chief Executive Officer; AOL Time Warner Inc.
Kenneth J. Novack Vice Chairman; AOL Time Warner Inc.
R.E. Turner Vice Chairman; AOL Time Warner Inc.
Daniel F. Akerson Former Chairman of the Board and
Chief Executive Officer;
XO Communications, Inc.
11111 Sunset Hills Road
Reston, VA 20190
(a broadband and communications company)
James L. Barksdale President and Chief Executive Officer of
Barksdale Management Corp.
800 Woodland Parkway, Suite 118
Ridgland, MS 39157
Stephen F. Bollenbach President and Chief Executive Officer;
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Frank J. Caufield Partner;
Kleiner Perkins Caufield & Byers
Four Embarcadero Center
San Francisco, CA 94111
(a venture capital partnership)
Miles R. Gilburne Principal; ZG Ventures L.L.C.
1250 Connecticut Avenue
Washington, D.C. 20036
Carla A. Hills Chairman and Chief Executive Officer;
Hills & Company
1200 19th Street, NW
Washington, DC 20036
(international trade and investment
consultants)
CUSIP No. 02365B100 Page 19 of 20
Reuben Mark Chief Executive Officer;
Colgate-Palmolive Company
300 Park Avenue
New York, NY 10022
(consumer products)
Michael A. Miles Former Chairman of the Board and
Chief Executive Officer
of Phillip Morris Companies Inc.;
Director of Various Companies
c/o AOL Time Warner Inc.
Franklin D. Raines Chairman and Chief Executive Officer;
Fannie Mae
3900 Wisconsin Avenue, NW
Washington, DC 20016-2806
(a non-banking financial services company)
Francis T. Vincent, Jr. Chairman of Vincent Enterprises
and Director of Various Companies;
290 Harbor Drive
Stamford, CT 06902
(a private investment firm)
Executive Officers Who Are Not Directors
----------------------------------------
Name Title and Present Principal Occupation
---- --------------------------------------
Jeffrey A. Bewkes Chairman, Entertainment & Networks Group;
AOL Time Warner Inc.
Don Logan Chairman, Media & Communications Group;
AOL Time Warner Inc.
Paul T. Cappuccio Executive Vice President, General Counsel and
Secretary; AOL Time Warner Inc.
Adolf R. DiBiasio Executive Vice President of Strategy and
Investments; AOL Time Warner Inc.
Patricia Fili-Krushel Executive Vice President of Administration;
AOL Time Warner Inc.
Robert M. Kimmitt Executive Vice President, Global & Strategic Policy;
AOL Time Warner Inc.
Michael M. Lynton Executive Vice President and President, International;
AOL Time Warner Inc.
Wayne H. Pace Executive Vice President and Chief Financial Officer;
AOL Time Warner Inc.
CUSIP No. 02365B100 Page 20 of 20
SCHEDULE III
DIRECTORS AND EXECUTIVE OFFICERS OF AMERICA ONLINE, INC.
---------------------------------------------------------
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
America Online, Inc. unless otherwise noted, each such person is a U.S. citizen,
and the business address of each such person is 22000 AOL Way, Dulles, Virginia
20166.
Board of Directors
------------------
Name Title and Present Principal Occupation
----- --------------------------------------
Don Logan Chairman, Media & Communications Group;
AOL Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
Jonathan F. Miller Chairman and Chief Executive Officer;
America Online, Inc.
Wayne H. Pace Executive Vice President and Chief Financial Officer;
AOL Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
Executive Officers Who Are Not Directors
----------------------------------------
Joseph A. Ripp Vice Chairman and Acting Chief Financial Officer;
America Online, Inc.
Theodore J. Leonsis Vice Chair, Advanced Services Group;
America Online, Inc.
Randall J. Boe Executive Vice President, General Counsel and
Secretary; America Online, Inc.
John Buckley Executive Vice President, Corporate Communications;
America Online, Inc.
J. Michael Kelly Chairman and Chief Executive Officer, AOL
International; America Online, Inc.
Martin R. Fisher President, Technology Department; America Online, Inc.
Lisa A. Hook President, AOL Broadband; America Online, Inc.
Michael M. Lynton President, AOL International; America Online, Inc.
Joseph M. Redling President, Brand Marketing; America Online, Inc.
Robert B. Sherman President, Interactive Marketing; America Online, Inc.
Peter B. Ashkin Executive Vice President, Technology Assessment;
America Online, Inc.
James P. Bankoff Executive Vice President, Operations, Interactive
Services; America Online, Inc.
Joel M. Davidson Executive Vice President, AOL Web Properties;
America Online, Inc.
David A. Gang Executive Vice President, Product Marketing;
America Online, Inc.
Matthew R. Korn Executive Vice President, Network and Data Center
Operations; America Online, Inc.
David A. Lebow Executive Vice President, Programming and Strategy
Neil Smit Executive Vice President, Member Services;
America Online, Inc.
Thomas R. Colan Senior Vice President, Controller and Treasurer;
America Online, Inc.
EXHIBIT INDEX
-------------
Exhibit Number Description
19 Certificate of Amendment of Fourth Restated Certficate of
Incorporation of America Online Latin America, Inc., filed
with the Secretary of State of the State of Delaware on
December 23, 2002.