-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BGitvo4/UToYFjAPIupf3zsxIsykzf/o1kuUCaDAd0rYXxVPh8kmljtaSB3lofDx 9CexVKD1510CgEC5PMxYhg== /in/edgar/work/20000619/0000950144-00-007922/0000950144-00-007922.txt : 20000919 0000950144-00-007922.hdr.sgml : 20000919 ACCESSION NUMBER: 0000950144-00-007922 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000619 GROUP MEMBERS: ARJ, LLC GROUP MEMBERS: ATTU SERVICES INC GROUP MEMBERS: BRIAN GOODKIND GROUP MEMBERS: COMMUNICATIONS INVESTORS GROUP GROUP MEMBERS: EDWARD JACOBSEN GROUP MEMBERS: IRVING A. PADRON JR GROUP MEMBERS: MANUEL D. MEDINA GROUP MEMBERS: MICHAEL KATZ GROUP MEMBERS: MORAINE INVESTMENTS GROUP MEMBERS: PARADISE STREAM LTD GROUP MEMBERS: TCO COMPANY LTD GROUP MEMBERS: VISTAGREEN HOLDINGS LTD GROUP MEMBERS: WILLIAM BIONDI GROUP MEMBERS: WILLY BERMELLO SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TERREMARK WORLDWIDE INC CENTRAL INDEX KEY: 0000912890 STANDARD INDUSTRIAL CLASSIFICATION: [4813 ] IRS NUMBER: 840873124 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-50879 FILM NUMBER: 656782 BUSINESS ADDRESS: STREET 1: 599 LEXINGTON AVE STREET 2: 49TH FL CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2123199160 MAIL ADDRESS: STREET 1: 599 LEXINGTON AVENUE STREET 2: 49TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: AMTEC INC DATE OF NAME CHANGE: 19970715 FORMER COMPANY: FORMER CONFORMED NAME: AVIC GROUP INTERNATIONAL INC/ DATE OF NAME CHANGE: 19950323 FORMER COMPANY: FORMER CONFORMED NAME: YAAK RIVER MINES LTD DATE OF NAME CHANGE: 19931001 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: COMMUNICATIONS INVESTORS GROUP CENTRAL INDEX KEY: 0001098655 STANDARD INDUSTRIAL CLASSIFICATION: [ ] IRS NUMBER: 650885535 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2601 S BAYSHORE DRIVE PH-1B CITY: COCONUT GROVE STATE: FL ZIP: 33133 BUSINESS PHONE: 3058607878 MAIL ADDRESS: STREET 1: 2601 S BAYSHORE STREET 2: DRIVE PH-1B CITY: COCUNUT GROVE STATE: FL ZIP: 33133 SC 13D/A 1 0001.txt TERREMARK WORLDWIDE/COMMUNICATIONS INVESTORS 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) TERREMARK WORLDWIDE, INC. - -------------------------------------------------------------------------------- (Name of issuer) COMMON STOCK, $.001 PAR VALUE - -------------------------------------------------------------------------------- (Title of class of securities) 03232Q106 - -------------------------------------------------------------------------------- (CUSIP number) PAUL BERKOWITZ, ESQ. GREENBERG TRAURIG, P.A. 1221 BRICKELL AVENUE MIAMI, FL 33131 (305) 579-0500 - -------------------------------------------------------------------------------- (Name, address and telephone Number of Person Authorized to Receive Notices and Communications) APRIL 28, 2000 - -------------------------------------------------------------------------------- (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 [ ]. Page 1 of 30 Pages 2 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 2 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Communications Investors Group - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS WC and BK - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Florida - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 3,101,720 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 3,101,720 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,101,720 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.58% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 3 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 3 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Vistagreen Holdings (Bahamas), Ltd. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bahamas - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 7,818,473 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 7,818,473 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,818,473 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 4 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 4 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Paradise Stream (Bahamas) Limited - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Bahamas - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 54,290,655 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 54,290,655 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 54,290,655 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.73% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 5 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 5 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Moraine Investments Inc. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 6,613,221 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 6,613,221 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,613,221 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.38% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 6 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 6 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS ATTU Services, Inc. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 4,186,173 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 4,186,173 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,186,173 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.14% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 7 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 7 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS TCO Company Limited - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 34,094,139 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 34,094,139 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,094,139 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.42% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 8 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 8 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Manuel D. Medina - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 42,872,097 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 32,197,913 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 32,197,913 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.45% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 9 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 9 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Michael Katz - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 3,055,830 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,055,830 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.56% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 10 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 10 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Brian Goodkind - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 2,269,801 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,269,801 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.16% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 11 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 11 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Edward Jacobsen - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 513,651 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 513,651 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 12 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 12 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS William Biondi - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 513,651 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 513,651 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 13 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 13 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Willy Bermello - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 235,620 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 235,620 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 14 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 14 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS ARJ, LLC (f/k/a AJR, LLC) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Connecticut - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 1,027,301 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,027,301 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- 15 - -------------------------------------------------------------------------------- CUSIP No. 03232Q106 SCHEDULE 13D Page 15 of 30 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Irving A. Padron, Jr. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY ------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 516,151 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 516,151 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 16 ITEM 1. SECURITY AND ISSUER. This amendment no. 1 to Schedule 13D ("AMENDMENT NO. 1") is filed as the first amendment to the Statement on Schedule 13D, dated November 12, 1999 (the "ORIGINAL SCHEDULE 13D"), filed on behalf of Communications Investors Group, a Florida general partnership (the "REPORTING PERSON"), relating to the common stock, par value $0.001 per share (the "COMMON STOCK"), of Terremark Worldwide, Inc., a Florida corporation (the "COMPANY"). This Amendment No. 1 reflects material changes in the Original Schedule 13D, such material changes being more fully reflected in Items 2, 3, 4, 5, 6 and 7 below. ITEM 2. IDENTITY AND BACKGROUND. Item 2 is hereby amended and supplemented to add the following: This statement represents the joint filing of Communications Investors Group ("CIG"), Vistagreen Holdings (Bahamas), Ltd., a Bahamas international business company ("VISTAGREEN"), Paradise Stream (Bahamas) Limited ("PARADISE STREAM"), Moraine Investments, Inc. ("MORAINE"), ATTU Services, Inc. ("ATTU"), TCO Company Limited ("TCO"), Manuel D. Medina, Michael Katz, Brian Goodkind, Edward Jacobsen, William Biondi, Willy Bermello, ARJ, LLC (f/k/a AJR, LLC), a Connecticut Limited Liability Company, and Irving A Padron Jr. (collectively, the "INDIVIDUAL SHAREHOLDERS") (collectively the Individual Shareholders with CIG, Paradise Stream, TCO, Vistagreen, Moraine and ATTU, are herein referred to as the "GROUP"). CIG has two partners, Manuel D. Medina and Andres Altaba. The addresses of each member of the Group are as follows: CIG 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 Vistagreen c/o Karp & Genauer, P.A. 2 Alhambra Plaza, Suite 1202 Coral Gables, FL 33134 Paradise Stream c/o Karp & Genauer, P.A. 2 Alhambra Plaza, Suite 1202 Coral Gables, FL 33134 Moraine c/o Karp & Genauer, P.A. 2 Alhambra Plaza, Suite 1202 Coral Gables, FL 33134 ATTU Charlotte House Charlotte Street P.O. Box N-65 Nassau Bahamas (242) 323-8574 Attn.: Mr. Adrian Crosbie-Jones Page 16 of 30 Pages 17 TCO Charlotte House Charlotte Street P.O. Box N-65 Nassau Bahamas (242) 323-8574 Attn.: Mr. Adrian Crosbie-Jones Manuel D. Medina 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 Michael Katz 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 Brian Goodkind 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 Edward Jacobsen 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 William Biondi 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 Willy Bermello 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 ARJ, LLC 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 Irving A. Padron, Jr. 2601 S. Bayshore Drive, 9th Floor Coconut Grove, Florida 33133 The occupations of the natural persons and the principal businesses of the entities which are members of the Group are as follows: CIG Investment Company Vistagreen Holding and Investment Company Paradise Stream Holding and Investment Company Moraine Holding and Investment Company ATTU Holding and Investment Company TCO Holding and Investment Company Manuel D. Medina Chairman and Chief Executive Officer of Terremark Worldwide Page 17 of 30 Pages 18 Michael Katz President and COO of Terremark Real Estate Group, Inc. Brian Goodkind Executive Vice President and General Counsel of Terremark Worldwide Edward Jacobsen President of Terremark Construction Services, Inc. William Biondi President of Terremark Management Services, Inc., Terremark Realty, Inc., and Terremark Financial Services, Inc. Willy Bermello Architect ARJ, LLC Holding and Investment Company Irving A. Padron, Jr. Senior Vice-President and Chief Financial Officer of Terremark Worldwide Neither CIG, nor any partner of CIG has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of Vistagreen, or any director or executive officer of Vistagreen, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of Paradise Stream, or any director or executive officer of Paradise Stream has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of Moraine, or any director or executive officer of Moraine has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining Page 18 of 30 Pages 19 future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of ATTU, or any director or executive officer of ATTU has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of TCO, or any director or executive officer of TCO has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of the Individual Shareholders have, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. None of CIG, or any partner of CIG, has, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). None of Vistagreen, or any director or executive officer of Vistagreen, has, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). None of Paradise Stream, or any director or executive officer of Paradise Stream, has, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). None of Moraine, or any director or executive officer of Moraine, has, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). None of ATTU, or any director or executive officer of ATTU, has, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). None of TCO, or any director or executive officer of TCO, has, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). Each of the Individual Shareholders are citizens of the United States. Page 19 of 30 Pages 20 ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION. Item 3 is hereby amended and supplemented to add the following: Terremark Holdings, Inc., a Florida corporation ("TERREMARK") and AmTec, Inc., a Delaware corporation ("AMTEC") entered into the Agreement and Plan of Merger dated as of November 24, 1999, as amended ("MERGER AGREEMENT") pursuant to which Terremark merged with and into AmTec and the shareholders of Terremark received shares of common stock of AmTec, $0.001 par value ("AMTEC COMMON STOCK"). On April 28, 2000, at a special meeting, the stockholders of AmTec approved and adopted the Merger Agreement. At the special meeting, the AmTec stockholders also approved the stock purchase agreement, dated as of November 24, 1999, as amended (the "STOCK PURCHASE AGREEMENT"), by and between AmTec and Vistagreen. Pursuant to the Stock Purchase Agreement, AmTec sold to Vistagreen, Paradise Stream, and Moraine (collectively, the "VISTAGREEN GROUP"), in the aggregate, 68,722,349 shares of its common stock. On April 21,2000, Manuel D. Medina, ATTU Services, Inc., TCO Company Limited, Willy Bermello, Brian Goodkind, Michael Katz, William Biondi, Edward Jacobsen, Irving Padron, Jr., and AJR, LLC (collectively, the "TERREMARK SHAREHOLDERS") entered into a Shareholders Agreement agreeing to vote all shares of Terremark Worldwide beneficially owned by them as directed by Manual D. Medina (the "SHAREHOLDERS AGREEMENT"). On April 28, 2000, AmTec completed the merger with Terremark. Pursuant to the merger, AmTec changed its name to Terremark Worldwide, Inc. On April 28, 2000, AmTec and Terremark Holdings filed Articles of Merger with the Secretary of State of Florida and filed a Certificate of Merger with the Secretary of State of Delaware thereby consummating the merger. On May 12, 2000, the Vistagreen Group and all of the Terremark Shareholders entered into a shareholders agreement which, among other things, provides that (i) the Terremark Shareholders agree to nominate or cause to be nominated and to vote all of their shares to elect two Vistagreen Group nominees to the board of directors of Terremark Worldwide; (ii) the Vistagreen Group agrees to nominate or cause to be nominated and to vote all of their shares to elect to the board all of the individuals who are nominated for directorships by the Terremark Worldwide, Inc. board of directors; and (iii) the Terremark shareholders agree to cause the non-Vistagreen designated directors to elect a Vistagreen designated director to the Executive Committee of the board. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended and supplemented to add the following: The information set forth in Item 3 of this Schedule and in the Merger Agreement, attached hereto as Exhibit 2, is incorporated by reference. Page 20 of 30 Pages 21 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is hereby amended and supplemented to add the following: CIG (a) CIG beneficially owns 3,101,720 shares or 1.58% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. The shares owned by the Reporting Person consist of 901,720 shares of Common Stock, 20 shares of Series G Convertible Preferred Stock which may be converted into 1,600,000 shares of Common Stock and warrants to purchase 600,000 shares of Common Stock. (b) (i) Sole power to vote or direct the vote: 3,101,720 (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 3,101,720 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable VISTAGREEN (a) Vistagreen beneficially owns 7,818,473 shares or 4.0% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 7,818,473 (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 7,818,473 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable Page 21 of 30 Pages 22 PARADISE STREAM (a) Paradise Stream beneficially owns 54,290,655 shares or 27.73% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 54,290,655 (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 54,290,655 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable MORAINE (a) Moraine beneficially owns 6,613,221 shares or 1.58% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 6,613,221 (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 6,613,221 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable ATTU (a) ATTU beneficially owns 4,186,173 shares or 1.58% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 4,186,173 (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 4,186,173 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable Page 22 of 30 Pages 23 TCO (a) TCO beneficially owns 34,094,139 shares or 17.42% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 34,094,139 (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 34,094,139 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable MANUEL D. MEDINA (a) Manuel D. Medina beneficially owns 32,197,913 shares or 16.45% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 42,872,097(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 32,197,913 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Includes 10,674,184 shares of the Company's common stock held by the Terremark Shareholders which Manuel D. Medina has the sole power to direct the vote of pursuant to the Shareholders Agreement Page 23 of 30 Pages 24 MICHAEL KATZ (a) Michael Katz beneficially owns 3,055,830 shares or 1.56% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 3,055,830 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 3,055,830 shares held by Michael Katz. BRIAN GOODKIND (a) Brian Goodkind beneficially owns 2,269,801 shares or 1.58% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 2,269,801 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 2,269,801 shares held by the Brian Goodkind. EDWARD JACOBSEN (a) Edward Jacobsen beneficially owns 3,055,830 shares or % of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. Page 24 of 30 Pages 25 (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 3,055,830 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 3,055,830 shares held by Edward Jacobsen. WILLY BERMELLO (a) Willy Bermello beneficially owns 235,620 shares which represents less than 1% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 235,620 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 265,620 shares held by Willy Bermello. WILLIAM BIONDI (a) William Biondi beneficially owns 513,651 shares which represents less than 1% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 513,651 (iv) Shared power to dispose of or direct the disposition of: 0 Page 25 of 30 Pages 26 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 513,651 shares held by William Biondi. ARJ, LLC (a) ARJ, LLC beneficially owns 1,027,301 shares or less than 1% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 1,027,301 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 1,027,301 shares owned by AJR, LLC, which, subsequent to the execution of the Shareholders Agreement, changed its name to ARJ, LLC. IRVING A. PADRON JR. (a) Irving A. Padron beneficially owns 516,151 shares which represents less than 1% of the outstanding Common Stock of the Company, based on a total of 195,772,105 shares of Common Stock outstanding on May 15, 2000. (b) (i) Sole power to vote or direct the vote: 0(1) (ii) Shared power to vote or direct the vote: 0 (iii) Sole power to dispose of or direct the disposition of: 516,151 (iv) Shared power to dispose of or direct the disposition of: 0 (c) Not Applicable Page 26 of 30 Pages 27 (d) Not Applicable (e) Not Applicable (1) Pursuant to the Shareholders Agreement, Manuel D. Medina has the sole power to direct the vote of the 516,151 shares held by Irving A. Padron, Jr. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is hereby amended and supplemented to add the following: The Group has entered into a Joint Filing Agreement, a copy of which is filed as Exhibit 1 hereto and is incorporated by reference, regarding the filing of this Schedule and future amendments hereto. Except as described in this Schedule, none of the members of the Group has any other contracts, arrangements, understandings or relationships with any persons with respect to any securities of the Company. Page 27 of 30 Pages 28 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby amended and supplemented to add the following: Exhibit No. 1 Joint Filing Agreement, dated June 14, 2000, among the Group 2 Agreement and Plan of Merger, dated as of November 24, 1999, as amended, by and among AmTec and Terremark. 3 Stock Purchase Agreement, dated as of November 24, 1999, as amended, by and between Vistagreen and AmTec. 4 Shareholders Agreement, dated May 12, 2000, by and among Vistagreen, Moraine, Paradise Stream, Brian Goodkind, Michael L. Katz, William Biondi, Edward P. Jacobsen, Irving J. Padron, Jr., Aviva Budd, Manuel Medina and William Bermello. 5 Shareholders Agreement, dated as of April 21, 2000, by and among Manuel D. Medina, Grapevine, Ltd., William Bermello, Brian Goodkind, Michael Katz, William Biondi, Edward Jacobsen, Irving Padron, Jr. and AJR, LLC. Page 28 of 30 Pages 29 SIGNATURE 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. June 15, 2000 COMMUNICATIONS INVESTORS GROUP By: /s/ Manuel D. Medina --------------------------------------- Name: Manuel D. Medina Title: General Partner VISTAGREEN HOLDINGS (BAHAMAS), LTD. By: /s/ Adrian Crosbie-Jones --------------------------------------- Adrian Crosbie-Jones, Vice President PARADISE STREAM (BAHAMAS) LIMITED By: /s/ Adrian Crosbie-Jones --------------------------------------- Adrian Crosbie-Jones, Vice President MORAINE INVESTMENTS, INC. By: /s/ Adrian Crosbie-Jones --------------------------------------- Adrian Crosbie-Jones, Vice President ATTU SERVICES, INC. By: Business Administration Limited By: /s/ Adrian Crosbie-Jones ------------------------------------ Adrian Crosbie-Jones, Director TCO COMPANY LIMITED By: Business Administration Limited By: /s/ Adrian Crosbie-Jones ------------------------------------- Adrian Crosbie-Jones, Director Page 29 of 30 Pages 30 /s/ Manuel D. Medina ------------------------------------------- MANUEL D. MEDINA /s/ Michael L. Katz ------------------------------------------- MICHAEL L. KATZ /s/ Brian Goodkind ------------------------------------------- BRIAN GOODKIND /s/ Edward P. Jacobsen ------------------------------------------- EDWARD P. JACOBSEN /s/ William Biondi ------------------------------------------- WILLIAM BIONDI /s/ Willy Bermello ------------------------------------------- WILLY BERMELLO ARJ, LLC By: /s/ Aviva Budd --------------------------------------- Name: Aviva Budd Title: Managing Member /s/ Irving A. Padron, Jr. ------------------------------------------- IRVING I. PADRON, JR. Page 30 of 30 Pages EX-99.1 2 0002.txt JOINT FILING AGREEMENT 1 Exhibit 1 JOINT FILING AGREEMENT Be it known that the undersigned hereby agree to file jointly a Schedule 13D and any amendments thereto reporting the beneficial ownership of Terremark Worldwide, Inc., a Florida corporation. Date: June 15, 2000 COMMUNICATIONS INVESTORS GROUP By: /s/ Manuel D. Medina ---------------------------------------- Name: Manuel D. Medina Title: General Partner VISTAGREEN HOLDINGS (BAHAMAS), LTD. By: /s/ Adrian Crosbie-Jones ---------------------------------------- Adrian Crosbie-Jones, Vice President PARADISE STREAM (BAHAMAS) LIMITED By: /s/ Adrian Crosbie-Jones ---------------------------------------- Adrian Crosbie-Jones, Vice President MORAINE INVESTMENTS, INC. By: /s/ Adrian Crosbie-Jones ---------------------------------------- Adrian Crosbie-Jones, Vice President ATTU SERVICES, INC. By: Business Administration Limited By: /s/ Adrian Crosbie-Jones ------------------------------------ Adrian Crosbie-Jones, Director TCO COMPANY LIMITED By: Business Administration Limited By: /s/ Adrian Crosbie-Jones ------------------------------------ Adrian Crosbie-Jones, Director 2 /s/ Manuel D. Medina ------------------------------------------- MANUEL D. MEDINA /s/ Michael L. Katz ------------------------------------------- MICHAEL L. KATZ /s/ Brian Goodkind ------------------------------------------- BRIAN GOODKIND /s/ Edward P. Jacobsen ------------------------------------------- EDWARD P. JACOBSEN /s/ William Biondi ------------------------------------------- WILLIAM BIONDI /s/ Willy Bermello ------------------------------------------- WILLY BERMELLO ARJ, LLC By: /s/ Aviva Budd ---------------------------------------- Name: Aviva Budd Title: Managing Member /s/ Irving A. Padron, Jr. ------------------------------------------- IRVING I. PADRON, JR. EX-99.2 3 0003.txt AGREEMENT AND PLAN OF MERGER 1 EXHIBIT 2 ===================================================================== AGREEMENT AND PLAN OF MERGER BY AND BETWEEN TERREMARK HOLDINGS, INC. AND AMTEC, INC. Dated as of November 24, 1999 ===================================================================== 2 TABLE OF CONTENTS Page ARTICLE I THE MERGER.....................................................1 1.1. The Merger........................................................1 1.2. Conversion of Stock...............................................2 1.3. Surrender of Certificates.........................................2 1.4. Fractional Shares.................................................3 1.5. Stock Options.....................................................3 1.6. Certificate of Incorporation of the Surviving Corporation.......................................................3 1.7. By-Laws of the Surviving Corporation..............................4 1.8. Directors and Officers of the Surviving Corporation...............4 1.9. Closing...........................................................4 1.10.Appraisal Rights..................................................4 1.11.Sale of Additional Shares.........................................4 ARTICLE II REPRESENTATIONS AND WARRANTIES.................................5 2.1. Representations and Warranties of the Company.....................5 (a) Due Organization, Good Standing and Corporate Power........................................................5 (b) Authorization and Validity of Agreement......................5 (c) Capitalization...............................................6 (d) Consents and Approvals; No Violations........................7 (e) Company Reports and Financial Statements.....................7 (f) Absence of Certain Changes...................................8 (g) Title to Properties; Encumbrances............................9 (h) Compliance with Laws.........................................9 (i) Litigation...................................................9 (j) Government Authorization....................................10 (k) Opinion of Financial Advisor................................10 (l) Takeover Statutes and Charter Provisions....................10 (m) Employee Benefit Plans......................................10 (n) Insurance...................................................11 (o) Casualties..................................................12 (p) Propriety of Past Payments..................................12 (q) Employment Relations and Agreements.........................12 (r) Client Relations............................................13 (s) Sufficiency of Assets.......................................13 (t) Contracts and Commitments...................................13 (u) Disclosure Documents........................................13 (v) Full Disclosure.............................................14 2.2. Representations and Warranties of Terremark......................14 (a) Due Organization; Good Standing and Corporate Power.......................................................14 (b) Authorization and Validity of Agreement.....................14 (c) Capitalization..............................................15 (d) Consents and Approvals; No Violations.......................16 (e) Real Property...............................................16 (f) Leases......................................................17 3 (g) Contracts and Commitments...................................17 (h) Insurance...................................................17 (i) Casualties..................................................18 (j) Propriety of Past Payments..................................18 (k) Financial Statements; Absence of Certain Changes.....................................................18 (l) Sufficiency of Assets.......................................19 (m) Information in Disclosure Documents and Registration Statement......................................19 (n) Broker's or Finder's Fee....................................20 (o) Compliance with Laws........................................20 (p) Litigation..................................................20 (q) Government Authorization....................................20 (r) Employee Benefit Plans......................................21 (i) List of Plans..........................................21 (ii) Status of Plans........................................21 (iii)Contributions..........................................21 (iv) Tax Qualification......................................21 (v) Transactions...........................................21 (vi) Documents..............................................22 (s) Employment Relations and Agreements.........................22 (t) Client Relations............................................22 (u) Environmental Laws and Regulations..........................22 (v) Full Disclosure.............................................23 ARTICLE III ADDITIONAL AGREEMENTS.........................................23 3.1. Access to Information Concerning Properties and Records..........................................................23 3.2. Confidentiality..................................................24 3.3. Registration Statement...........................................24 3.4. Conduct of the Business Pending the Effective Time...............24 3.5. Company Stockholder Meeting; Proxy Statement; Form S-4..............................................................25 3.6. Stock Exchange Listing...........................................26 3.7. Reasonable Best Efforts..........................................26 3.8. Supplemental Disclosure..........................................26 3.9. Officers' and Directors' Insurance; Indemnification..............26 3.10.Letters of Company's Accountants.................................27 3.11.Takeover Statutes................................................27 3.12.U.S. Real Property Holding Company Covenant......................27 ARTICLE IV CONDITIONS PRECEDENT TO MERGER................................28 4.1. Conditions Precedent to Obligations of Terremark and the Company......................................................28 (a) Approval of Company's Stockholders..........................28 (b) Registration Statement......................................28 (c) Litigation..................................................28 (d) Injunction..................................................28 (e) Statutes....................................................28 (f) AMEX Listing................................................29 4.2. Conditions Precedent to Obligations of Terremark.................29 (a) Accuracy of Representations and Warranties..................29 (b) Performance by Company......................................29 (c) Tax Opinion Letter..........................................29 (d) Letters of Company Accountants..............................29 (e) Employment Agreement........................................29 (f) Stock Purchase Agreement....................................30 4.3. Conditions Precedent to Obligation of the Company................30 (a) Accuracy of Representations and Warranties..................30 (b) Performance by Terremark....................................30 (c) Letters of Terremark Accountants............................30 (d) Lock Up Letters.............................................30 ARTICLE V TERMINATION AND ABANDONMENT...................................31 5.1. Termination......................................................31 5.2. Effect of Termination............................................31 ARTICLE VI MISCELLANEOUS.................................................32 6.1. Fees and Expenses................................................32 6.2. Negotiations.....................................................32 6.3. Survival of Representations and Warranties.......................34 6.4. Extension; Waiver................................................34 6.5. Public Announcements.............................................34 6.6. Notices..........................................................34 6.7. Entire Agreement; Severability...................................35 6.8. Binding Effect; Benefit; Assignment..............................36 6.9. Amendment and Modification.......................................36 6.10.Further Actions..................................................36 6.11.Interpretation; Headings.........................................36 6.12.Counterparts.....................................................37 6.13.Applicable Law...................................................37 6.14.Severability.....................................................37 6.15."Person" Defined.................................................37 4 DEFINITIONS Page ---- Acquisition Proposal (Section 6.2(a)).......................................34 Affiliate (Section 4.3(d))..................................................32 Agents (Section 3.2)........................................................25 Agreement (Preamble).........................................................1 AMEX (Section 1.4)...........................................................3 Certificate of Merger (Section 1.1(a)).......................................1 Closing (Section 1.9)........................................................4 Closing Date (Section 1.9)...................................................4 Commission (Section 2.1(e))..................................................7 Commission Filings (Section 2.1(e))..........................................8 Common Stock (Section 1.2(a))................................................2 Company (Preamble)...........................................................1 Company Benefit Plans (Section 2.1(m)(i))...................................11 Company Proxy Statement (Section 2.1(u))....................................14 Company Stock Option (Section 1.5)...........................................3 Company Stock Option Plans (Section 1.5).....................................3 Company Stockholders Approval (Section 2.1(b))...............................6 DGCL (Section 1.1(a))........................................................1 EC Merger Regulation (Section 2.1(j)).......................................10 Effective Time (Section 1.1(a))..............................................1 Environmental Laws (Section 2.2(u)(i))......................................23 ERISA (Section 2.1(m)(i))...................................................11 ERISA (Section 2.2(r)(i))...................................................22 Exchange Act (Section 2.1(d))................................................7 FBCA (Section 1.1(a))........................................................1 Foregone Commission (Section 6.2(e))........................................35 Form S-4 (Section 2.1(u))...................................................14 Hazardous Material Section 2.2(a)1))........................................23 HSR Act (Section 2.1(d)).....................................................7 Knowledge (Section 2.1(i))..................................................10 Material Adverse Effect (Section 2.1(a)).....................................5 Maximum Amount (Section 3.9)................................................28 Merger (Preamble)............................................................1 Merger Consideration (Section 1.2(c))........................................2 Notice of Superior Proposal (Section 6.2(b))................................34 Partners (Section 1.11)......................................................4 Permits (Section 2.1(h))....................................................10 Person (Section 6.15).......................................................39 Post Merger Common Stock (Section 1.2(a))....................................2 Predecessor (Section 2.2(u)(ii))............................................24 Preferred Stock (Section 2.1(c)).............................................6 Proceeds (Section 1.11)......................................................4 Securities Act (Section 2.1(d))..............................................7 Stock Purchase Agreement (Section 4.2(f))...................................31 Subsidiary (Section 2.1(a))..................................................5 Superior Proposal (Section 6.2(a))..........................................34 Surviving Corporation (Section 1.1(b)).......................................2 Terremark (Preamble).........................................................1 Terremark Benefit Plans (Section 2.2(r)(i)).................................22 Terremark Common Stock (Section 1.2(b))......................................2 Terremark Financial Statements (Section 2.2(k)).............................19 Terremark Preferred Stock (Section 2.2(c))..................................15 Vista Green (Section 4.2(f))................................................31 5 AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER, dated as of November 24, 1999 ("Agreement"), by and between Terremark Holdings, Inc., a Florida corporation ("Terremark"), and AMTEC, INC., a Delaware corporation (the "Company"). WHEREAS, Terremark desires to merge with and into the Company and the Company desires that Terremark be merged with and into it, with the Company being the surviving corporation; WHEREAS, the respective Boards of Directors of Terremark and the Company have approved the execution of this Agreement and the transactions contemplated hereby including the merger of Terremark into the Company pursuant to and subject to the terms and conditions of this Agreement and the laws of the States of Delaware and Florida (the "Merger"); WHEREAS, the Directors of the Company have determined that the terms of the Merger are in the best interests of, the holders of the issued and outstanding capital stock of the Company, approved the Merger and recommend the acceptance of the approval and adoption of this Agreement by the stockholders of the Company; and WHEREAS, the terms and conditions of the Merger and the mode of carrying the same into effect are set forth below. NOW, THEREFORE, in consideration of the premises and of the mutual covenants, representations, warranties, conditions and agreements herein contained, the parties hereto agree as follows: ARTICLE I THE MERGER 1.1. The Merger. (a) Subject to the terms and conditions of this Agreement, at the time of the Closing (as defined in Section 1.9 hereof), a certificate of merger (the "Certificate of Merger") shall be duly prepared, executed and acknowledged by Terremark and the Company in accordance with the General Corporation Law of the State of Delaware (the "DGCL") and the Florida Business Corporation Act (the "FBCA") and shall be filed, together with all other filings or recordings required by the DGCL and the FBCA to be made in connection with the Merger, on the Closing Date (as defined in Section 1.9 hereof). The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware in accordance with the provisions and requirements of the DGCL. The date and time when the Merger shall become effective is hereinafter referred to as the "Effective Time." (b) At the Effective Time, Terremark shall be merged with and into the Company whereupon the separate corporate existence of Terremark shall cease, and the Company shall continue as the surviving corporation under the laws of the State of Delaware (the "Surviving Corporation"). (c) From and after the Effective Time, the Merger shall have the effects set forth in Section 607.1106 of the FBCA and Section 259 of the DGCL. 1.2. Conversion of Stock. At the Effective Time: ------------------- (a) Each share of the common stock of the Company, $0.001 par value (the "Common Stock") then issued and outstanding shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into and represent one share of common stock, $0.001 par value, of the Surviving Corporation (the "Post Merger Common Stock") and any rights to receive Common Stock (including options, warrants and convertible preferred stock) shall automatically be converted to a right to receive an equal number of the Post Merger Common Stock, such that, immediately after the Effective Time, all holders of the Common Stock, together with the holders of any rights to receive Common Stock shall, in the aggregate and on a fully diluted basis, hold 38.5% of the Post Merger Common Stock of the Surviving Corporation; (b) Each share of common stock, par value $0.01 per share, of Terremark (the "Terremark Common Stock") then issued and outstanding shall, by virtue of the Merger and without any action on the part of the holder thereof, become the right to receive fully paid and nonassessable shares of the Post Merger Common Stock, such that, immediately after the Effective Time, all holders of the Terremark Common Stock shall, in the aggregate and on a fully diluted basis, hold 61.5% of the Post Merger Common Stock; and (c) Each share of the Post Merger Common Stock issued as provided in Sections 1.2 (a) and (b) shall be of the same class and shall have the same terms as the currently outstanding Common Stock. The shares of the Post Merger Common Stock to be received as consideration pursuant to the Merger with respect to the Common Stock (together with cash in lieu of fractional shares as set forth below) is referred to herein as the "Merger Consideration." 1 6 1.3. Surrender of Certificates. ------------------------- (a) At the Effective Time, each holder of a certificate or certificates theretofore representing issued and outstanding shares of the Terremark Common Stock may surrender such certificates to the Surviving Corporation and receive in exchange therefor certificates representing the appropriate number of shares of Post Merger Common Stock as provided in Section 1.2. In the event that the share certificates for the shares in the Surviving Corporation are to be registered to a holder other than the registered owner of a surrendered certificate, it shall be a condition of such issuance that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that all applicable transfer and other similar taxes shall have been paid. Until so surrendered, each such certificate shall, from and after the Effective Time, represent for all purposes, only the right to receive the shares of the Post Merger Common Stock. (b) At the Effective Time, the share certificates theretofore representing issued and outstanding shares of the Common Stock shall automatically be deemed to represent the same number of shares of Post Merger Common Stock. (c) No dividends or other distributions with respect to shares of the Post Merger Common Stock shall be paid to holders of any certificates representing the shares of Terremark Common Stock not surrendered as set forth in this Section 1.3. Subject to applicable laws, following such surrender, there shall be paid, without interest, to the record holder of the shares of the Post Merger Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such Post Merger Common Stock with a record date after the Effective Time and a payment on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such Post Merger Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For the purposes of dividends or other distributions in respect of Post Merger Common Stock, all shares of Post Merger Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time. 1.4. Fractional Shares. No fractional shares of the Post Merger Common Stock shall be issued in the Merger, but in lieu thereof, each holder of the Terremark Common Stock shall be entitled to receive, in lieu of the fractional shares, an amount of cash, without interest thereon (rounded to the nearest whole cent), equal to the product of (i) such fraction of a share of Post Merger Common Stock, multiplied by (ii) the average of the closing prices of the shares of the Common Stock on the American Stock Exchange (the "AMEX") as reported in The Wall Street Journal (subject to correction for typographical or other manifest errors in such reporting) over the ten trading-day period immediately preceding the Closing Date. 1.5. Stock Options. (a) At the Effective Time, each outstanding option to purchase Common Stock (a "Company Stock Option") granted under the Company's plans identified in Schedule 1.5 as being the only compensation or benefit plans or agreements pursuant to which Common Stock may be issued (collectively, the "Company Stock Option Plans"), whether vested or not vested, shall be deemed assumed by the Surviving Corporation and shall thereafter be deemed to constitute an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option prior to the Effective Date (in accordance with the past practice of the Company with respect to interpretation and application of such terms and conditions), the same number of shares of Post Merger Common Stock. In addition, prior to the Effective Time, the Company will make any amendments to the terms of such stock option or compensation plans or arrangements that are necessary to give effect to the transactions contemplated by this Agreement. The Company represents that no consents are necessary to give effect to the transactions contemplated by this Section. (b) Prior to the Effective Time, the Board of Directors of the Company shall or shall cause the Plan Committee (as defined in the Company Stock Option Agreements) to take all actions necessary to ensure that the Merger will not result in (i) an acceleration of the vesting of any Company Stock Options or (ii) a change in the number of shares for which outstanding options are exercisable. 1.6. Certificate of Incorporation of the Surviving Corporation. The Certificate of Incorporation of the Company, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the Surviving Corporation; provided, however, that it shall have been amended to reflect that the total number of shares of capital stock that the Company is authorized to issue is 300,000,000 shares of common stock. 1.7. By-Laws of the Surviving Corporation. The By-Laws of the Company, as in effect immediately prior to the Effective Time, shall be the By-Laws of the Surviving Corporation; provided, however, that the Directors of the Surviving Corporation shall take all such action as is necessary to increase the maximum number of directors of the Surviving Corporation to a number which is not less than 13. 2 7 1.8. Directors and Officers of the Surviving Corporation. The Company agrees to take all necessary actions so that, on the second Business Day after the Effective Time, the Company's board of directors shall include not less than seven persons designated by Terremark. 1.9. Closing. The closing of the Merger (the "Closing") shall take place at the offices of Greenberg Traurig, P.A., 1221 Brickell Avenue, Miami, Florida, as soon as practicable after the last of the conditions set forth in Article IV hereof is fulfilled or waived (subject to applicable law) but in no event later than the fifth business day thereafter, or at such other time and place and on such other date as Terremark and the Company shall mutually agree (the "Closing Date"). 1.10. Appraisal Rights. In accordance with Section 262 of the Delaware Law, no appraisal rights shall be available to holders of shares of the Common Stock, in connection with the Merger. 1.11. Sale of Additional Shares. The parties to this Agreement hereby acknowledge that Terremark at Bayshore, Inc., Terremark Centre, Inc. and ACGDI, Inc. (each of which is a Florida corporation and which are collectively referred to as the "Partners"), has sold to Terremark their interests in Terremark Centre Limited, a Florida limited partnership, the owner of certain real property referred to as the Terremark Centre located at 2601 South Bayshore Drive, Coconut Grove, Florida, for a purchase price equal to the difference between $56,000,000 and the (at the time of the sale) outstanding principal balance of the first mortgage loan in favor of Principal Mutual Insurance Company (the "Proceeds"). The Surviving Corporation hereby agrees to, at the Effective Time, sell to the Partners, or their assignees, for the Proceeds, such number of shares of Common Stock as shall be equal, in the aggregate and on a fully diluted basis, to 35% of the Post Merger Common Stock of the Surviving Corporation pursuant to that certain Stock Purchase Agreement which shall be executed contemporaneously herewith between the Company and Vistagreen Holdings (Bahamas), Ltd., a Bahamian international business corporation. Upon the closing of this Agreement and the Stock Purchase Agreement, the percentage ownership of the holders of the Company Common Stock prior to the Effective Time shall be 25%, the percentage ownership of the Partners shall be 35%, and the percentage ownership of the existing holders of the Terremark Common Stock shall be 40%, each such percentage representing the respective ownership of such persons of the Post Merger Common Stock. ARTICLE II REPRESENTATIONS AND WARRANTIES ------------------------------ 2.1. Representations and Warranties of the Company. The Company hereby represents and warrants to Terremark as follows: (a) Due Organization, Good Standing and Corporate Power. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and each such corporation has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except in such jurisdictions where the failure to be so qualified or licensed and in good standing would not have a Material Adverse Effect on the Company. For the purposes of this Agreement, "Material Adverse Effect" on any Person means a material adverse effect on the business, properties, assets, liabilities, operations, results of operations, condition (financial or otherwise) or prospects of the Person and its Subsidiaries taken as a whole (i) except to the extent resulting from (A) any change in general United States or global economic conditions or general economic conditions in industries in which the Person competes, or (B) the announcement of the transaction contemplated herein or any action required to be taken pursuant to the terms hereof, and (ii) except that the term Material Adverse Effect shall not include, with respect to the Company (A) any decreases in the Company's stock price in and of itself or (B) any deterioration in the Company's financial condition which is a direct and proximate result of its agreements with Hebei United Telecommunication Equipment Co. The Company has heretofore made available to Terremark true and complete copies of the Certificate of Incorporation and Bylaws (or equivalent documents), as amended to date, for itself and each of its Subsidiaries and copies of the minutes of its Board of Directors and committees of the Board of Directors (except as the same relate to transactions contemplated hereby). The term "Subsidiary," as used in this Agreement, refers to any Person in which the Company or Terremark, as the case may be, owns any equity interest and shall include all joint ventures. (b) Authorization and Validity of Agreement. The Company has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by the Company, and the consummation by it of the transactions contemplated hereby, have been duly authorized and approved by its Board of Directors and no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance of this 3 8 Agreement by the Company and the consummation of the transactions contemplated hereby (other than the approval of this Agreement and the Merger by the holders of a majority of the shares of Common Stock (the "Company Stockholders Approval"), which is the only vote of the holders of any equity interest in the Company necessary in connection with the consummation of the Merger). This Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. The Company's Board of Directors, at a meeting duly called and held, has, subject to the provisions of Section 6.2 hereof (i) determined that this Agreement and the transactions contemplated hereby are fair to and in the best interests of the Company's stockholders, (ii) approved and adopted this Agreement and the transactions contemplated hereby and authorized the execution of this Agreement, and (iii) resolved to recommend approval and adoption of this Agreement and the Merger by its stockholders. (c) Capitalization. (i) The authorized capital stock of the Company consists of 100,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, $0.001 par value (the "Preferred Stock"). As of the close of business on November 22, 1999, 36,271,689 shares of Common Stock are issued and outstanding. Set forth on Schedule 2.2(c)(i) are (1) the number of shares of Common Stock reserved for issuance pursuant to outstanding Options granted under the Stock Incentive Plans, (2) the number of such shares which have been issued under such Plans, (3) the number of shares of Series G Preferred Stock issued and outstanding, and (4) the number of warrants to purchase the indicated number of shares of Common Stock. No shares of Common Stock are held in the Company's treasury. The Series G Preferred Stock converts at the option of the holder into 1,688,022 shares of Common Stock, which number of shares of Common Stock have been authorized and reserved for issuance by the Company. All issued and outstanding shares of capital stock of the Company have been validly issued and are fully paid and nonassessable, and are not subject to, nor were they issued in violation of, any preemptive rights. Except as set forth in this Section 2.1(c) or on Schedule 2.1(c) attached hereto, (x) there are no shares of capital stock of the Company authorized, issued or outstanding (except for shares subsequently issued pursuant to existing options, warrants and other rights described in Section 2.1(c)) and (y) there are not, as of the date hereof, and at the Effective Time there will not be, any outstanding or authorized options, warrants, rights, subscriptions, claims of any character, agreements, obligations, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to Common Stock or any other shares of capital stock of the Company, pursuant to which the Company is or may become obligated to issue shares of Common Stock, any other shares of its capital stock or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the capital stock of the Company. (ii) Schedule 2.1(c)(ii) lists all of the Company's Subsidiaries (as defined in Section 2.1(a) hereof). All of the outstanding shares of capital stock of each of the Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to, nor were they issued in violation of, any preemptive rights, and are owned, of record and beneficially, by the Company, except as otherwise set forth on Schedule 2.1(c)(ii), free and clear of all liens, encumbrances, options or claims whatsoever. No shares of capital stock of any of the Company's Subsidiaries are reserved for issuance and there are no outstanding or authorized options, warrants, rights, subscriptions, claims of any character, agreements, obligations, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to the capital stock of any Subsidiary of the Company, pursuant to which such Subsidiary is or may become obligated to issue any shares of capital stock of such Subsidiary or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of such Subsidiary. Except for the Subsidiaries listed on Schedule 2.1(c)(ii), the Company does not own, directly or indirectly, any capital stock or other equity interest in any Person or have any direct or indirect equity or ownership interest in any Person and, except as set forth in Schedule 2.1(c)(ii), neither the Company nor any of its Subsidiaries is subject to any obligation or requirement to provide funds for or to make any investment (in the form of a loan, capital contribution or otherwise) to or in any Person. Schedule 2.1(c)(ii), sets forth the equity interests of each such Subsidiary owned by the Company. (d) Consents and Approvals; No Violations. Assuming (i) compliance with any applicable requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) compliance with any requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act") and any requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") relating to the Proxy Statement and registration of the Post Merger Common Stock to be issued to holders of Terremark Common Stock are met, (iii) the filing of the Certificate of Merger and other appropriate merger documents, if any, as required by DGCL, and (iv) approval of the Merger by a majority of the holders of Common Stock, is received, the execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby will not: (1) violate any provision of the Certificate of Incorporation or 4 9 By-Laws of the Company or any of its Subsidiaries; (2) violate any statute, ordinance, rule, regulation, order or decree of any court or of any governmental or regulatory body, agency or authority applicable to the Company or any of its Subsidiaries or by which any of their respective properties or assets may be bound; (3) require any filing with, or permit, consent or approval of, or the giving of any notice to, any governmental or regulatory body, agency or authority; or (4) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, payment or acceleration) under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, franchise, permit, agreement, lease, franchise agreement or other instrument or obligation to which the Company or any of its Subsidiaries is a party, or by which it or any of their respective properties or assets may be bound, excluding from the foregoing clauses (2), (3) and (4) filings, notices, permits, consents and approvals the absence of which, and violations, breaches, defaults, conflicts and liens which, in the aggregate, would not have a Material Adverse Effect on the Company. (e) Company Reports and Financial Statements. Since March 31, 1997, the Company has filed all forms, reports and documents with the Securities and Exchange Commission (the "Commission") required to be filed by it pursuant to the federal securities laws and the Commission rules and regulations thereunder, and, except to the extent revised or superseded by a subsequent filing filed with the Commission prior to the date hereof, all forms, reports and documents filed with the Commission have complied in all material respects with all applicable requirements of the federal securities laws and the Commission rules and regulations promulgated thereunder. The Company has heretofore made available to Terremark true and complete copies of all forms, reports, registration statements and other filings filed by the Company with the Commission since March 31, 1997 (such forms, reports, registration statements and other filings, together with any amendments thereto, are sometimes collectively referred to as the "Commission Filings"). As of their respective dates, except to the extent revised or superseded by a subsequent filing filed with the Commission prior to the date hereof, the Commission Filings did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the (i) consolidated balance sheets as of the end of the fiscal years ended March 31, 1997, 1998 and 1999 and as of the end of the fiscal quarters ended June 30, September 30, and December 31 of each such year, and (ii) the consolidated statements of operations, consolidated statements of stockholders' equity and consolidated statements of changes in financial position for the fiscal years ended March 31, 1997, 1998 and 1999 and for each of the fiscal quarters ended June 30, September 30 and December 31 of each such year, as included in the Commission Filings, were all prepared in accordance with generally accepted accounting principles (as in effect from time to time) applied on a consistent basis (except as may be indicated therein or in the notes or schedules thereto) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the results of their operations and changes in financial position for the periods then ended (subject to normal year-end adjustments and the absence of notes in the case of any unaudited interim financial statements, none of which individually or in the aggregate had or could have a Material Adverse Effect). (f) Absence of Certain Changes. Except as previously disclosed in the Commission Filings, the Company and its Subsidiaries have (i) conducted their respective businesses in the ordinary course, consistent with past practice, and (ii) since March 31, 1999, there has not been: (i) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on the Company; (ii) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company, or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of their capital stock or any securities convertible into their capital stock; (iii) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; (iv) any material transaction or commitment made, or any contract, agreement or settlement entered into, by (or judgment, order or decree affecting) the Company or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any material amount of assets) or any relinquishment by the Company or any of its Subsidiaries of any contract or other right, in either case, material to the Company and its Subsidiaries, taken as a whole, other than transactions, commitments, contracts, agreements or settlements (including without limitation settlements of litigation and tax proceedings) in the ordinary course of business consistent with past practice and those contemplated by this Agreement; (v) any change in any method of accounting or accounting 5 10 practice by the Company or any of its Subsidiaries, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; (vi) any (1) grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of the Company or any of its Subsidiaries, (2) entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its Subsidiaries, (3) increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements or (4) increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its Subsidiaries, in each case, other than in the ordinary course of business consistent with past practice or as permitted by this Agreement; or (vii) any material Tax election made or changed, any material audit settled or any material amended Tax Return filed. (g) Title to Properties; Encumbrances. The Company and each of its Subsidiaries has good, valid and marketable title to (i) all its material tangible properties and assets (real and personal), including, without limitation, all the properties and assets reflected in the consolidated balance sheet as of September 30, 1999 except as indicated in the notes thereto and except for properties and assets reflected in the consolidated balance sheet as of September 30, 1999 which have been sold or otherwise disposed of in the ordinary course of business, and (ii) all the tangible properties and assets purchased by the Company and any of its Subsidiaries since September 30, 1999 except for such properties and assets which have been sold or otherwise disposed of in the ordinary course of business; in each case subject to no encumbrance, lien, charge or other restriction of any kind or character, except for (1) liens reflected in the consolidated balance sheet as of September 30, 1999, (2) liens consisting of zoning or planning restrictions, easements, permits and other restrictions or limitations on the use of real property or irregularities in title thereto which do not materially detract from the value of, or impair the use of, such property by the Company or any of its Subsidiaries in the operation of its respective business, (3) liens for current taxes, assessments or governmental charges or levies on property not yet due and delinquent and (4) liens created in connection with the loan from Terremark to the Company. (h) Compliance with Laws; Permits. The Company and its Subsidiaries are in material compliance with all applicable laws, regulations, orders, judgments and decrees except where the failure to so comply would not have a Material Adverse Effect on the Company. The Company has not received any notice alleging non-compliance within the last two years. Each member of the Company Group (a) has all permits, approvals and other authorizations ("Permits") necessary for the conduct and operation of its businesses as currently conducted and (b) uses its assets in compliance with the terms of such Permits, except for any Permits not obtained or any noncompliance which would not, individually or in the aggregate, have a Material Adverse Effect. (i) Litigation. Except as disclosed in the Commission Filings, there is no and, in the past two years there has been no, action, suit, proceeding at law or in equity, or any arbitration or any administrative or other proceeding by or before (or to the Company's knowledge any investigation by) any governmental or other instrumentality or agency, pending, or, to the Company's knowledge, threatened, against or affecting the Company or any of its Subsidiaries, or any of their properties or rights which could have a Material Adverse Effect on the Company or prevent or delay the consummation of the Merger. There are no such suits, actions, claims, proceedings or investigations pending or, to the Company's knowledge, threatened, seeking to prevent or challenging the transactions contemplated by this Agreement. Except as disclosed in the Commission Filings, neither the Company nor any of its Subsidiaries is subject to any judgment, order or decree entered in any lawsuit or proceeding which could have a Material Adverse Effect on the Company or on the ability of the Company or any Subsidiary to conduct its business as presently conducted. For the purposes of this Agreement, the term "knowledge" shall mean actual knowledge. (j) Government Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency, official or authority other than (i) the filing of a certificate of merger in connection with the Merger in accordance with Delaware Law and Florida law, (ii) compliance with any applicable requirements of the HSR Act, (iii) compliance with any applicable requirements of Council Regulation No. 4064/89 of the European Community, as amended (the "EC Merger Regulation"), (iv) compliance with any other applicable requirements of foreign anti-trust or investment laws, (v) compliance with any applicable environmental transfer statutes, (vi) compliance with any applicable requirements of the Exchange Act, (vii) compliance with any applicable requirements of the Securities Act, or (viii) other actions or filings which if not taken or made would not, individually or in the aggregate, have a Material Adverse Effect on the Company or prevent or materially delay the Company's consummation of the Merger. 6 11 (k) Opinion of Financial Advisor. The Company has received the opinion of Ramius Capital Group, L.L.C. to the effect that, as of the date of its opinion, the transactions contemplated herein are necessary to the Company. Except for Ramius Capital Group, L.L.C., the fees of which shall not exceed $150,000 and such number of shares of Post Merger Common Stock as shall have a value of $150,000 as determined based upon the closing price of Common Stock of the Company on the trading day immediately preceding the day of the Effective Time, no agent, broker, Person or firm acting on behalf of the Company is, or will be entitled to any fee, commission or broker's or finder's fees from any of the parties hereto, or from any Person controlling, controlled by, or under common control with any of the parties hereto, in connection with this Agreement or any of the transactions contemplated hereby. (l) Takeover Statutes and Charter Provisions. The Board of Directors of the Company has taken the necessary actions to render Section 203 of the DGCL, any other potentially applicable anti-takeover or similar statute or regulation and the provisions of the Company's charter, if any, inapplicable to this Agreement, the Merger and the transactions contemplated hereby. (m) Employee Benefit Plans. ---------------------- (i) List of Plans. Set forth in Schedule 2.1(m) attached hereto is an accurate and complete list of all employee benefit plans ("Company Benefit Plans") within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not any such Employee Benefit Plans are otherwise exempt from the provisions of ERISA, established, maintained or contributed to by the Company or any of its Subsidiaries (including, for this purpose and for the purpose of all of the representations in this Section 2.1(m), all employers (whether or not incorporated) which by reason of common control are treated together with the Company as a single employer within the meaning of Section 414 of the Code). (ii) Status of Plans. Neither the Company nor any of its Subsidiaries maintains or contributes to any Company Benefit Plan subject to ERISA which is not in substantial compliance with ERISA. None of the Company Benefit Plans are subject to the minimum funding requirements of Section 412 of the Code, or subject to Title IV of ERISA, or multiemployer plans (as defined in Section 4001(a)(3) of ERISA. (iii) Contributions. All amounts which the Company or any of its Subsidiaries is required, under applicable law or under any Company Benefit Plan or any agreement relating to any Company Benefit Plan to which Company or any of its Subsidiaries is a party, to have paid as contributions thereto as of the last day of the most recent fiscal year of such Company Benefit Plan ended prior to the date hereof, have either been paid or properly accrued on the Financial Statements. The Company has made any accruals on its Financial Statements that are required in accordance with generally accepted accounting principles for contributions that have not been made because they are not yet due under the terms of any Company Benefit Plan or related agreements. Benefits under all Company Benefit Plans are as represented and have not been increased subsequent to the date as of which documents have been provided to the Company. (iv) Tax Qualification. The Internal Revenue Service has issued a favorable determination letter that each Company Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified, and, to the knowledge of the Company, nothing has occurred since the date of the last such determination which resulted or is likely to result in the revocation of such determination. (v) Transactions. Neither the Company nor any of its Subsidiaries has engaged in any transaction with respect to the Company Benefit Plans which would subject it to a material tax, penalty or liability for prohibited transactions under ERISA or the Code nor has any of their respective directors, officers or employees to the extent they or any of them are fiduciaries with respect to such Plans, materially breached any of their responsibilities or obligations imposed upon fiduciaries under Title I of ERISA or would result in any material claim being made under or by or on behalf of any such Plans by any party with standing to make such claim. (n) Insurance. The Company has made available to Terremark a schedule of insurance and policies currently maintained by the Company and its Subsidiaries. Furthermore (a) neither the Company nor any of the Company's Subsidiaries has received any notice of cancellation or non-renewal of any such policy or arrangement nor is the termination of any such policies or arrangements threatened, (b) there is no claim pending under any of such policies or arrangements as to which coverage has been questioned, denied or disputed by the underwriters of such policies or arrangements, (c) neither the Company nor any of the Company's Subsidiaries has received any notice from any of its insurance carriers that any insurance premiums will be increased in the future or that any insurance coverage presently provided for will not be available to the Company or any of the Company's Subsidiaries in the future on substantially the same terms as now in effect and (d) none of such policies or arrangements provides for any retrospective premium adjustment, experienced-based liability or loss sharing arrangement affecting the Company or any of the Company's 7 12 Subsidiaries. (o) Casualties. Neither the Company nor any of the Company's Subsidiaries has been affected in any way as a result of flood, fire, explosion or other casualty (whether or not material and whether or not covered by insurance). The Company is not aware of any circumstance which is likely to cause it to suffer any material adverse change in its business, operations or prospects. (p) Propriety of Past Payments. (i) No unrecorded fund or asset of the Company or any of the Company's Subsidiaries has been established for any purpose, (ii) no accumulation or use of corporate funds of the Company or any of the Company's Subsidiaries has been made without being property accounted for in the books and records of the Company or any of the Company's Subsidiaries, (iii) no payment has been made by or on behalf of the Company or any of the Company's Subsidiaries with the understanding that any part of such payment is to be used for any purpose other than that described in the documents supporting such payment and (iv) none of the Company, any of the Company's Subsidiaries, any director, officer, employee or agent of the Company of any of the Company's Subsidiaries has, directly or indirectly, made any illegal contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any Person, private or public, regardless of form, whether in money, property or services, (A) to obtain favorable treatment for any stockholder, the Company, any of the Company's Subsidiaries or any affiliate of the Company in securing business, (B) to pay for favorable treatment for business secured for any stockholder, the Company, any of the Company's Subsidiaries or any affiliate of the Company, (C) to obtain special concessions, or for special concessions already obtained, for or in respect of any stockholder, the Company or any of the Company's Subsidiaries or any affiliate of the Company or (iv) otherwise for the benefit of any stockholder, the Company or any of the Company's Subsidiaries or any affiliate of the Company in violation of any federal, state, local, municipal, foreign, international, multinational or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty (including existing site plan approvals, zoning or subdivision regulations or urban redevelopment plans relating to Real Property). Neither the Company nor any of the Company's Subsidiaries nor any current directly, officer, agent, employee or other Person acting on behalf of the Company or any of the Company's Subsidiaries, has accepted or received any unlawful contribution, payment, gift, kickback, expenditure or other item of value. (q) Employment Relations and Agreements. (i) Each of the Company and its Subsidiaries is in substantial compliance with all foreign, federal, state or other applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, and has not and is not engaged in any unfair labor practice; (ii) no unfair labor practice complaint against the Company or any of its Subsidiaries is pending before the National Labor Relations Board; (iii) there is no labor strike, dispute, slowdown or stoppage actually pending or threatened against or involving the Company or any of its Subsidiaries; (iv) no representation question exists respecting the employees of the Company or any of its Subsidiaries; (v) no grievance which might have a Material Adverse Effect on the Company and its Subsidiaries or the conduct of their respective businesses exists, no arbitration proceeding arising out of or under any collective bargaining agreement is pending and no claim therefor has been asserted; (vi) no collective bargaining agreement is currently being negotiated by the Company or any of its Subsidiaries; and (vii) neither the Company nor any of its Subsidiaries has experienced any material labor difficulty during the last three years. There has not been, and to the Company's knowledge, there will not be, any change in relations with employees of the Company or any of its Subsidiaries as a result of the transactions contemplated by this Agreement which could have a Material Adverse Effect on the Company. Except as disclosed in Schedule 2.1(q) attached hereto, there exist no employment, consulting, severance or indemnification agreements between the Company and any director, officer or employee of the Company or any agreement that would give any Person the right to receive any payment from the Company as a result of the Merger. (r) Client Relations. There has not been, and to the Company's knowledge, there will not be, any change in relations with franchisees, customers or clients of the Company or any of its Subsidiaries as a result of the transactions contemplated by this Agreement which could have a Material Adverse Effect on the Company. (s) Sufficiency of Assets. The rights, properties and other assets presently owned, leased or licensed by the Company or its Subsidiaries include all such rights, properties and other assets necessary to permit the Company and its Subsidiaries to conduct their respective businesses in all material respects in the same manner as such businesses have been conducted prior to the date hereof. (t) Contracts and Commitments. Except as provided in Schedule 2.1(t): (i) No purchase contracts or commitments of the Company or any of its Subsidiaries are in excess of the normal, ordinary and usual requirements of business or at any excessive price. (ii) Neither the Company nor any Subsidiary has any outstanding contracts with Shareholders, directors, officers, employees, agents, consultants, advisors, salesmen, sales representatives, 8 13 distributors or dealers that are in excess of the normal, ordinary and usual requirements of business or at any excessive price. (iii) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business anywhere in the world. (iv) Neither the Company nor any of its Subsidiaries has outstanding any agreement to acquire any debt obligations of others. (u) Disclosure Documents. Neither the proxy statement of the Company (the "Company Proxy Statement") nor the Registration Statement on Form S-4 (the "Form S-4"), each to be filed with the Commission in connection with the Merger, nor any amendment or supplement thereto, will, at the date the Company Proxy Statement or any such amendment or supplement is first mailed to stockholders of the Company or at the time such stockholders vote on the adoption and approval of this Agreement and the transactions contemplated hereby, with respect to the Company Proxy Statement, or the date the Form S-4 or any amendment thereto is filed with the Commission, with respect to the Form S-4, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company Proxy Statement and the Form S-4 will, when filed, each comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, no representation or warranty is made by the Company in this Section 2.1(u) with respect to statements made or incorporated by reference therein based on information supplied by Terremark for inclusion or incorporation by reference in the Company Proxy Statement or the Form S-4, which shall be deemed to include information by any third party with respect to any of the assets directly or indirectly acquired by or furnished to Terremark after the date hereof. (v) Full Disclosure. The Company has not failed to disclose to Terremark any facts material to the business, results of operations, assets, liabilities, financial condition or prospects of the Company or its Subsidiaries. No representation or warranty by the Company contained in this Agreement and no statement contained in any document (including financial statements and the Schedules hereto), certificate, or other writing furnished or to be furnished by the Company to Terremark or any of its representatives pursuant to the provisions hereof or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading. 2.2. Representations and Warranties of Terremark. Terremark represents and warrants to the Company as follows: (a) Due Organization; Good Standing and Corporate Power. Each of Terremark and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and each such corporation has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of Terremark and its Subsidiaries is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except in such jurisdictions where the failure to be so qualified or licensed and in good standing would not have a Material Adverse Effect on Terremark. Each member of the Terremark Group has made available to the Company true and complete copies of its certificate of incorporation, as amended to date, its by-laws, as amended to date and copies of the minutes of its Board of Directors and of committees of the Board of Directors (except as the same relate to the transactions contemplated hereby). (b) Authorization and Validity of Agreement. Terremark has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Terremark, and the consummation by it of the transactions contemplated hereby, have been duly authorized and approved by its Board of Directors of Terremark. No other corporate action on the part of Terremark is necessary to authorize the execution, delivery and performance of this Agreement by Terremark and the consummation of the transactions contemplated hereby (other than the approval of this Agreement by the shareholders of Terremark, if required by the FBCA). This Agreement has been duly executed and delivered by Terremark and is a valid and binding obligation of Terremark, enforceable against Terremark in accordance with its terms, except that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and general equitable principles. Terremark's Board of Directors, at a meeting duly called and held, has approved and adopted this Agreement and the transactions contemplated hereby, and resolved to recommend approval an adoption of this Agreement and the Merger by its shareholders. (c) Capitalization. (i) The authorized capital stock of Terremark consists of 5,000,000 shares of Terremark Common Stock and 4,176,693 shares of preferred stock, $1.00 par value, of which 4,176,693 shares of Series A Convertible Preferred Stock are outstanding (the "Terremark Preferred Stock"). As of November 23, 1999, 1,121,250 shares of 9 14 Terremark Common Stock are issued and outstanding, and no shares of Terremark Common Stock are reserved for issuance. All issued and outstanding shares of Terremark Common Stock have been validly issued and are fully paid and nonassessable, and are not subject to, nor were they issued in violation of, any preemptive rights. Except as set forth in this Section 2.2(c), (x) there are no shares of capital stock of Terremark authorized, issued or outstanding (except for shares subsequently issued pursuant to existing options or other rights described in this Section 2.2(c)) and (y) there are not as of the date hereof, and at the Effective Time there will not be, any outstanding or authorized options, warrants, rights, subscriptions, claims of any character, agreements, obligations, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to the Terremark Common Stock or any other shares of capital stock of Terremark, pursuant to which Terremark is or may become obligated to issue shares of Terremark Common Stock, any other shares of its capital stock or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the capital stock of Terremark. (ii) Schedule 2.2(c)(ii) lists all of Terremark's Subsidiaries, the shareholders of each Subsidiary and the shares they own. All of the outstanding shares of capital stock of each of Terremark's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to, nor were they issued in violation of, any preemptive rights, and are owned, of record and beneficially, by Terremark, free and clear of all liens, encumbrances, options or claims whatsoever. No shares of capital stock of any of Terremark's Subsidiaries are reserved for issuance and there are no outstanding or authorized options, warrants, rights, subscriptions, claims of any character, agreements, obligations, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to the capital stock of any Subsidiary of Terremark, pursuant to which such Subsidiary is or may become obligated to issue any shares of capital stock of such Subsidiary or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of such Subsidiary. Except for the Subsidiaries listed on Schedule 2.2(c)(ii), Terremark does not own, directly or indirectly, any capital stock or other equity interest in any Person or have any direct or indirect equity or ownership interest in any Person and neither Terremark nor any of its Subsidiaries is subject to any obligation or requirement to provide funds for or to make any investment (in the form of a loan, capital contribution or otherwise) to or in any Person. With respect to each of its Subsidiaries, a member of the Terremark Group owns 100% of the stock of each such Person. (d) Consents and Approvals; No Violations. Assuming (i) compliance with any applicable requirements under the HSR Act, (ii) the filing of the Certificate of Merger and other appropriate merger documents, if any, as required by the laws of the FBCA is made and (iii) approval of this Agreement by the shareholders of Terremark if required by the laws of Florida, the execution and delivery of this Agreement by Terremark and the consummation by Terremark of the transactions contemplated hereby will not: (1) violate any provision of the Articles of Incorporation or By-Laws of Terremark; (2) violate any statute, ordinance, rule, regulation, order or decree of any court or of any governmental or regulatory body, agency or authority applicable to Terremark or by which its properties or assets may be bound; (3) require any filing with, or permit, consent or approval of, or the giving of any notice to any governmental or regulatory body, agency or authority; or (4) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the properties or assets of Terremark or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, franchise, permit, agreement, lease or other instrument or obligation to which Terremark or any of its Subsidiaries is a party, or by which they or their respective properties or assets may be bound, excluding from the foregoing clauses (2), (3) and (4) violations, filings, notices, permits, consents and approvals the absence of which, and violations, breaches, defaults, conflicts and liens which, in the aggregate, would not have a Material Adverse Effect on Terremark. (e) Real Property. (i) All Real Property ("Real Property") that is owned by Terremark or any Terremark Subsidiary is reflected as an asset on the Balance Sheet of the Terremark Financial Statements. There are no proceedings, claims, disputes or conditions affecting any Real Property that will curtail or interfere with the use of such property. Neither the whole nor any portion of the Real Property nor any other assets of Terremark or any Terremark Subsidiary is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor to the knowledge of Terremark has any such condemnation, expropriation or taking been proposed. (ii) Neither Terremark nor any Terremark Subsidiary has received any notice of, or other writing referring to, any requirements or recommendations by any insurance company that has issued a policy covering any part of the Real Property or by any board of fire underwriters or other body exercising similar functions, requiring or recommending any repairs or work to be done on any part of the Real Property, which repair or work has not been completed. (iii) Each of Terremark and each Terremark Subsidiary has 10 15 obtained all appropriate certificates of occupancy, licenses, easements and rights of way, including proofs of dedication, required to use and operate the Real Property in the manner in which the Real Property is currently being used and operated, except where the failure to obtain the same would not have a Material Adverse Effect. Each of Terremark and each Terremark Subsidiary has all approvals, permits and licenses, and no such approvals, permits or licenses will be required, as a result of the Merger, to be issued after the date hereof in order to permit the Company, following the Closing, to continue to own or operate the Real Property in the same manner as heretofore, other than any such approvals, permits or licenses that are ministerial in nature and are normally issued in due course upon application therefore without the further action by the applicant or when the failure to obtain the same would not have a Material Adverse Effect. (f) Leases. Schedule 2.2(f) contains an accurate and complete description of the terms of each Lease ("Lease" shall mean each lease pursuant to which Terremark or any Terremark Subsidiary leases any real or personal property (excluding leases relating solely to personal property calling for rental or similar periodic payments not exceeding $100,000 per annum)). To Terremark's knowledge, each Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect. The leasehold estate created by each Lease is free and clear of all encumbrances. Except for defaults which individually or in the aggregate have not had and will not have a Material Adverse Effect, there are no existing defaults by Terremark or any Terremark Subsidiary under any of the Leases. No event has occurred that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default under any Lease. Neither Terremark nor any of the Terremark Subsidiaries has received notice, or has any other reason to believe, that any lessor under any Lease will not consent (where such consent is necessary) to the consummation of the Merger without requiring any modification of the rights or obligations of the lessee thereunder. (g) Contracts and Commitments. Except as provided in the Terremark Financial Statements: (i) No purchase contracts or commitments of Terremark or any Terremark Subsidiary are in excess of the normal, ordinary and usual requirements of business or at any excessive price. (ii) Neither Terremark nor any Terremark Subsidiary has any outstanding contracts with Shareholders, directors, officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are in excess of the normal, ordinary and usual requirements of business or at any excessive price. (iii) Neither Terremark nor any Terremark Subsidiary is restricted by agreement from carrying on its business anywhere in the world. (iv) Neither Terremark nor any Terremark Subsidiary has outstanding any agreement to acquire any debt obligations of others. (h) Insurance. Terremark has made available to the Company a schedule of insurance and policies currently maintained by Terremark and its Subsidiaries. Furthermore (a) neither Terremark nor any Terremark Subsidiary has received any notice of cancellation or non-renewal of any such policy or arrangement nor is the termination of any such policies or arrangements threatened, (b) there is no claim pending under any of such policies or arrangements as to which coverage has been questioned, denied or disputed by the underwriters of such policies or arrangements, (c) neither Terremark nor any Terremark Subsidiary has received any notice from any of its insurance carriers that any insurance premiums will be increased in the future or that any insurance coverage presently provided for will not be available to Terremark or any Terremark Subsidiary in the future or that any insurance coverage presently provided for will not be available to Terremark or any Terremark Subsidiary in the future on substantially the same terms as now in effect and (d) none of such policies or arrangements provides for any retrospective premium adjustment, experienced-based liability or loss sharing arrangement affecting Terremark or any Terremark Subsidiary. (i) Casualties. Neither Terremark nor any Terremark Subsidiary has been affected in any way as a result of flood, fire, explosion or other casualty (whether or not material and whether or not covered by insurance). Terremark is not aware of any circumstance which is likely to cause it to suffer any material adverse change in its business, operations or prospects. (j) Propriety of Past Payments. (a) No unrecorded fund or asset of Terremark or any Terremark Subsidiary has been established for any purpose, (b) no accumulation or use of corporate funds of Terremark or any Terremark Subsidiary has been made without being properly accounted for in the books and records of Terremark or such Subsidiary, (c) no payment has been made by or on behalf of Terremark or any Terremark Subsidiary with the understanding that any part of such payment is to be used for any purpose other than that described in the documents supporting such payment and (d) none of Terremark, any Terremark Subsidiary, any director, officer, employee or agent of Terremark or any Terremark Subsidiary or any other Person associated with or acting for or on behalf of Terremark or any Terremark Subsidiary has, directly or indirectly, made any illegal contribution, gift, bribe, rebate, payoff, influence payment, kickback or 11 16 other payment to any Person, private or public, regardless of form, whether in money, property or services, (i) to obtain favorable treatment for any shareholder, Terremark, any Terremark Subsidiary or any affiliate of Terremark in securing business, (ii) to pay for favorable treatment for business secured for any shareholder, Terremark, any Terremark Subsidiary or any affiliate of Terremark, (iii) to obtain special concessions, or for special concessions already obtained, for or in respect of any shareholder, Terremark, any Terremark Subsidiary or any affiliate of Terremark or (iv) otherwise for the benefit of any shareholder, Terremark, any Terremark Subsidiary or any affiliate of Terremark in violation of any federal, state, local, municipal, foreign, international, multinational or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty (including existing site plan approvals, zoning or subdivision regulations or urban redevelopment plans relating to Real Property). Neither Terremark nor any Terremark Subsidiary nor any current director, officer, agent, employee or other Person acting on behalf of Terremark or any Terremark Subsidiary, has accepted or received any unlawful contribution, payment, gift, kickback, expenditure or other item of value. (k) Financial Statements; Absence of Certain Changes. The consolidated balance sheets provided by Terremark to the Company as of March 31, 1999 and 1998 and the consolidated income statements and statements of cash flow for the periods then ended and the unaudited balance sheet as of September 30, 1999 and the unaudited consolidated income statement for the period then ended (the "Terremark Financial Statements") fairly present the consolidated financial position of Terremark and its subsidiaries as of such dates and fairly present the results of operations and changes in cash flow for the periods then ended, in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in notes thereto and as for any unaudited financial statements, except for normal year-end adjustments and the absence of notes). Terremark and its Subsidiaries have since March 31, 1999 conducted in all material respects their respective businesses in the ordinary course, reasonably consistent with past practice, and there has not been: (i) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on Terremark; (ii) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of Terremark, or any repurchase, redemption or other acquisition by Terremark or any of its Subsidiaries of any outstanding shares of their capital stock or any securities convertible into their capital stock; (iii) any amendment of any material term of any outstanding security of Terremark or any of its Subsidiaries; (iv) any transaction or commitment made, or any contract, agreement or settlement entered into, by (or judgment, order or decree affecting) Terremark or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any material amount of assets) or any relinquishment by Terremark or any of its Subsidiaries of any contract or other right, in either case, material to Terremark and its Subsidiaries, taken as a whole, other than transactions, commitments, contracts, agreements or settlements (including without limitation settlements of litigation and tax proceedings) in the ordinary course of business consistent with past practice and those contemplated by this Agreement; (v) any change in any method of accounting or accounting practice (other than any change for tax purposes) by Terremark or any of its Subsidiaries, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; (vi) any material Tax election made or changed, any material audit settled or any material amended Tax Returns filed. (l) Sufficiency of Assets. The rights, properties and other assets presently owned, leased or licensed by Terremark or the Terremark Subsidiaries include all such rights, properties and other assets necessary to permit Terremark and Terremark Subsidiaries to conduct their respective businesses in all material respects in the same manner as such businesses have been conducted prior to the date hereof. (m) Information in Disclosure Documents and Registration Statement. None of the information supplied or to be supplied by Terremark for inclusion in (i) the Form S-4, at the time it becomes effective or, in the case of the Proxy Statement or any amendments thereof or supplements thereto, at the time of the initial mailing of the Proxy Statement and any amendments or supplements thereto, and at the time of the meeting of shareholders of Terremark and the stockholders of the Company to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4, as of its effective date, will comply (with respect to the information relating to Terremark) as to form in all material respects with the requirements of the Securities Act, and the rules and regulations promulgated thereunder, and as of the date of its initial mailing and as of 12 17 the date of the Company's stockholders' meeting, the Proxy Statement will comply (with respect to information relating to Terremark) as to form in all material respects with the applicable requirements of the Exchange Act, and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, Terremark makes no representations as to any statement in the foregoing documents based on information supplied by the Company for inclusion therein. (n) Broker's or Finder's Fee. No agent, broker, Person or firm acting on behalf of Terremark is, or will be, entitled to any fee, commission or broker's or finder's fees from any of the parties hereto, or from any Person controlling, controlled by, or under common control with any of the parties hereto, in connection with this Agreement or any of the transactions contemplated hereby. (o) Compliance with Laws. Terremark and its Subsidiaries are in material compliance with all applicable laws, regulations, orders, judgments and decrees except where the failure to so comply would not have a Material Adverse Effect on Terremark. Terremark has not received any notice alleging non-compliance within the last two years. Each member of the Terremark Group (a) has all Permits necessary for the conduct and operation of its businesses as currently conducted and (b) uses its assets in compliance with the terms of such Permits, except for any Permits not obtained or any noncompliance which would not, individually or in the aggregate, have a Material Adverse Effect. (p) Litigation. Except as disclosed in the Terremark Financial Statements or as set forth in Schedule 2.2(p) attached hereto, there is no action, suit, proceeding at law or in equity, or any arbitration or any administrative or other proceeding by or before (or to Terremark's knowledge, any investigation by) any governmental or other instrumentality or agency, pending, or, to Terremark's knowledge, threatened, against or affecting Terremark or any of its Subsidiaries, or any of their properties or rights which could have a Material Adverse Effect on Terremark or prevent or delay the consummation of the Merger. There are no such suits, actions, claims, proceedings or investigations pending or, to Terremark's knowledge, threatened, seeking to prevent or challenging the transactions contemplated by this Agreement. Except as disclosed in the Terremark Financial Statements, neither Terremark nor any of its Subsidiaries is subject to any judgment, order or decree entered in any lawsuit or proceeding which could have a Material Adverse Effect on Terremark or on the ability of Terremark or any Subsidiary to conduct its business as presently conducted. (q) Government Authorization. The execution, delivery and performance by Terremark of this Agreement and the consummation by Terremark of the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency, official or authority other than (i) the filing of a certificate of merger in connection with the Merger in accordance with Delaware Law and Florida law, (ii) compliance with any applicable requirements of the HSR Act, (iii) compliance with any applicable requirements of the EC Merger Regulation, (iv) compliance with any other applicable requirements of foreign anti-trust or investment laws, (v) compliance with any applicable environmental transfer statutes, (vi) compliance with any applicable requirements of the Exchange Act, (vii) compliance with any applicable requirements of the Securities Act, (viii) other actions or filings which if not taken or made would not, individually or in the aggregate, have a Material Adverse Effect on Terremark or prevent or materially delay Terremark's consummation of the Merger. (r) Employee Benefit Plans (i) List of Plans. Set forth in Schedule 2.2(r) attached hereto is an accurate and complete list of all employee benefit plans ("Terremark Benefit Plans") within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), whether or not any such Employee Benefit Plans are otherwise exempt from the provisions of ERISA, established, maintained or contributed to by Terremark or any of its Subsidiaries (including, for this purpose and for the purpose of all of the representations in this Section 2.2(r), all employers (whether or not incorporated) which by reason of common control are treated together with Terremark as a single employer within the meaning of Section 414 of the Code). (ii) Status of Plans. Neither Terremark nor any of its Subsidiaries maintains or contributes to any Terremark Benefit Plan subject to ERISA which is not in substantial compliance with ERISA. None of the Terremark Benefit Plans are subject to the minimum funding requirements of Section 412 of the Code, or subject to Title IV of ERISA, or multiemployer plans (as defined in Section 4001(a)(3) of ERISA. (iii) Contributions. All amounts which Terremark or any of its Subsidiaries is required, under applicable law or under any Terremark Benefit Plan or any agreement relating to any Terremark Benefit Plan to which Terremark or any of its Subsidiaries is a party, to have paid as contributions thereto as of the last day of the most recent fiscal year of such Terremark Benefit Plan ended prior to the date hereof, have either been paid or properly accrued on the Financial Statements. Terremark has made any accruals on its Financial Statements that are required in accordance with generally accepted accounting principles for contributions that have not been made because they are not yet due under the terms of any 13 18 Terremark Benefit Plan or related agreements. Benefits under all Terremark Benefit Plans are as represented and have not been increased subsequent to the date as of which documents have been provided to Terremark. (iv) Tax Qualification. The Internal Revenue Service has issued a favorable determination letter that each Terremark Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified, and, to the knowledge of Terremark, nothing has occurred since the date of the last such determination which resulted or is likely to result in the revocation of such determination. (v) Transactions. Neither Terremark nor any of its Subsidiaries has engaged in any transaction with respect to the Terremark Benefit Plans which would subject it to a material tax, penalty or liability for prohibited transactions under ERISA or the Code nor has any of their respective directors, officers or employees to the extent they or any of them are fiduciaries with respect to such Plans, materially breached any of their responsibilities or obligations imposed upon fiduciaries under Title I of ERISA or would result in any material claim being made under or by or on behalf of any such Plans by any party with standing to make such claim. (vi) Documents. Terremark has delivered or caused to be delivered to Terremark and its counsel true and complete copies of (1) all Terremark Benefit Plans as in effect, together with all amendments thereto which will become effective at a later date, as well as the latest Internal Revenue Service determination letter obtained with respect to any such Terremark Benefit Plan qualified under Section 401 or 501 of the Code and (2) Form 5500 for the most recent completed fiscal year for each Terremark Benefit Plan required to file such form. (s) Employment Relations and Agreements. (i) Each of Terremark and its Subsidiaries is in substantial compliance with all foreign, federal, state or other applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, and has not and is not engaged in any unfair labor practice; (ii) no unfair labor practice complaint against Terremark or any of its Subsidiaries is pending before the National Labor Relations Board; (iii) there is no labor strike, dispute, slowdown or stoppage actually pending or threatened against or involving Terremark or any of its Subsidiaries; (iv) no representation question exists respecting the employees of Terremark or any of its Subsidiaries; (v) no grievance which might have a Material Adverse Effect on Terremark and its Subsidiaries or the conduct of their respective businesses exists, no arbitration proceeding arising out of or under any collective bargaining agreement is pending and no claim therefor has been asserted; (vi) no collective bargaining agreement is currently being negotiated by Terremark or any of its Subsidiaries; and (vii) neither Terremark nor any of its Subsidiaries has experienced any material labor difficulty during the last three years. There has not been, and to Terremark's knowledge, there will not be, any change in relations with employees of Terremark or any of its Subsidiaries as a result of the transactions contemplated by this Agreement which could have a Material Adverse Effect on Terremark. There exist no employment, consulting, severance or indemnification agreements between Terremark and any director, officer or employee of Terremark or any agreement that would give any Person the right to receive any payment from the Company as a result of the Merger. (t) Client Relations. There has not been, and to Terremark's knowledge, there will not be, any change in relations with franchisees, customers or clients of Terremark or any of its Subsidiaries as a result of the transactions contemplated by this Agreement which could have a Material Adverse Effect on Terremark. (u) Environmental Laws and Regulations. ---------------------------------- (i) The term "Environmental Laws" means any federal, state, local or foreign law, statute, treaty, ordinance, rule, regulation, permit, consent, approval, license, judgment, order, decree or injunction, each as currently in effect and applicable, relating to: (i) Releases (as defined in 42 U.S.C. sec. 9601(22)) or threatened Releases of Hazardous Material (as hereinafter defined) into the environment; (ii) the generation, treatment, storage, disposal, use, handling, manufacturing, transportation or shipment of Hazardous Material; (iii) the health or safety of employees in the workplace; (iv) protecting or restoring natural resources; or (v) the environment. The term "Hazardous Material" means: (1) hazardous substances (as defined in 42 U.S.C. sec. 9601(14)), including "hazardous waste" as defined in 42 U.S.C. sec. 6903; (2) petroleum, including crude oil and any fractions thereof; (3) natural gas, synthetic gas and any mixtures thereof; (4) asbestos and/or asbestos containing materials; (5) PCBs or materials containing PCBs; (6) any material regulated as a medical waste; (7) radioactive materials; and (8) "Hazardous Substance" or "Hazardous Material" as those terms are defined in any indemnification provision in any contract, lease, or agreement to which Terremark or any of its subsidiaries is a party. (ii) The representations in this Section 2.2(u) shall be deemed to apply to the Terremark Centre to the extent that it is an asset which Terremark owns as of the Closing. With respect to any property Terremark or any of its Subsidiaries currently or previously owned, to Terremark's knowledge (i) there have been no Releases of Hazardous Material 14 19 in, on, under or affecting such properties or any surrounding site, and each property is in compliance in all material respects with applicable law, (ii) neither Terremark nor any of its Subsidiaries has disposed of any Hazardous Material in a manner that has led, or could reasonably be expected to lead, to a Release, except in each case for those Releases which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Terremark. There have been no Releases of Hazardous Material in, on, under or affecting their current or previously owned or leased properties or any surrounding site, except in each case for those Releases which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Terremark. Neither Terremark nor any of its Subsidiaries has received any written notice of, or entered into any order, settlement or decree relating to: (i) any violation of any Environmental Laws by Terremark or any of its Subsidiaries or the institution or pendency of any suit, action, claim, proceeding or investigation by any Governmental Entity or any third party against Terremark or any of its Subsidiaries; or (ii) the response to or remediation of Hazardous Material at or arising from any of Terremark's properties or any subsidiary's properties. To Terremark's knowledge, there have been no violations of any Environmental Laws by Terremark or any Subsidiary or any Predecessor (herein defined) which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Terremark. "Predecessor" means any Person which at any time directly or indirectly owned any of the properties leased or owned at any time by any member of the Terremark Group. (v) Full Disclosure. Terremark has not failed to disclose to the Company any facts material to the business, results of operations, assets, liabilities, financial condition or prospects of Terremark or Terremark Subsidiaries. No representation or warranty by Terremark contained in this Agreement and no statement contained in any document (including financial statements and the Schedules hereto), certificate, or other writing furnished or to be furnished by Terremark to the Company or any of its representatives pursuant to the provisions hereof or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading. ARTICLE III ADDITIONAL AGREEMENTS 3.1. Access to Information Concerning Properties and Records. During the period commencing on the date hereof and ending at the Effective Time, each of the Company and Terremark shall, and shall cause each of their respective Subsidiaries to, upon reasonable notice, afford the other party, and its respective counsel, accountants and other authorized representatives, full access during normal business hours to the properties, books and records of itself and its Subsidiaries in order that they may have the opportunity to make such investigations as they shall desire. No such investigation shall, however, affect the representations and warranties made by each party to this Agreement. Each party hereto agrees to cause its officers and employees to furnish such additional financial and operating data and other information and respond to such inquiries as the other party may from time to time request. 3.2. Confidentiality. Prior to the Effective Time and after any termination of this Agreement each party hereto will hold, and will use its best efforts to cause its officers, directors, employees, accountants, counsel, consultants, advisors and agents to hold, in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law, including but not limited to, the Securities law, all confidential documents and information concerning the other parties hereto and the Subsidiaries furnished to such party in connection with the transactions contemplated by this Agreement, except to the extent that such information can be shown to have been (i) previously known on a nonconfidential basis by such party, (ii) in the public domain through no fault of such party, or (iii) later lawfully acquired by such party from sources other than the parties hereto; provided, however, that such party may disclose such information to its officers, directors, employees, accountants, counsel, consultants, advisors, agents and representatives (collectively, "Agents") in connection with the transactions contemplated by this Agreement so long as such Persons are informed by such party of the confidential nature of such information and are directed by such party to treat such information confidentially and any breach by any such Agent shall be deemed to conclusively be a breach by the applicable party hereto for whom such Agent is an Agent. If this Agreement is terminated for any reason, each party hereto will, and will use its best efforts to cause its Agents to, destroy or deliver to the party from whom such material was obtained, upon request, all documents and other materials, and all copies thereof, obtained by such party or on its behalf from any such other parties in connection with this Agreement that are subject to such confidence. 3.3. Registration Statement. As promptly as practicable, Terremark and the Company shall in consultation with each other prepare and file with the SEC the Proxy Statement in preliminary form. Each of them shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC and the S-4 declared effective as soon as practicable. If at any time prior to 15 20 the Effective Time any event or circumstances relating to the Company, any subsidiary of the Company or Terremark, any of their respective subsidiaries, or their respective officers or directors, should be discovered by such party which should be set forth in an amendment or a supplement to the Form S-4 or Proxy Statement, such party shall promptly inform the other thereof and take appropriate action in respect thereof. 3.4. Conduct of the Business Pending the Effective Time. The Company and Terremark each agrees that, except as permitted, required or specifically contemplated by, or otherwise described in, this Agreement or otherwise consented to or approved in writing by the other, such consent not to be unreasonably withheld or delayed, during the period commencing on the date hereof and ending at the Effective Time: (a) Each of them and their respective Subsidiaries will conduct their operations only according to their ordinary and usual course of business and will use their best efforts to preserve intact their respective business organization, keep available the services of their officers and employees and maintain satisfactory relationships with licensors, suppliers, distributors, clients and others having business relationships with them; (b) Neither of them nor any of their respective Subsidiaries shall, except as otherwise contemplated in this Agreement, (i) make any change in or amendment to their charter or by-laws (or comparable governing documents); (ii) issue or sell any shares of their capital stock (other than in connection with the exercise of Options outstanding on the date hereof) or any of its other securities, or issue any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any of its other securities, or make any other changes in their capital structure; provided, however, that Terremark shall cause all outstanding shares of its Series A Convertible Preferred Stock to be converted to Terremark Common Stock prior to the Closing, (iii) declare, pay or make any dividend or other distribution or payment with respect to, or split, redeem or reclassify, any shares of their capital stock; (iv) enter into any contract or commitment except contracts in the ordinary course of business, including without limitation, any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or release or relinquish any material contract rights (it being understood that the acquisition, development, leasing, sale, mortgaging or other disposition of real property or rights with respect thereto is in the ordinary course of business of Terremark); (v) amend any employee or non-employee benefit plan or program, employment agreement, license agreement or retirement agreement, or pay any bonus or contingent compensation; provided, however, that Terremark may take such actions so long as and to the extent that the same are consistent with prior practices; (vi) agree to the settlement of any litigation involving a payment of more than $100,000 in the aggregate; (vii) change or permit to change any method of accounting or accounting practices used by it, except for any such change which is not material or which is required by reason of a concurrent change in GAAP, (viii) agree, in writing or otherwise, to take any of the foregoing actions or (ix) make or change any material tax election; and (c) Neither of them shall, nor permit any of their Subsidiaries to, take any action, engage in any transaction or enter into any agreement which would cause any of the representations or warranties set forth in this Agreement to be untrue as of the Closing Date. 3.5. Company Stockholder Meeting; Proxy Statement; Form S-4. ------------------------------------------------------ (a) The Company, acting through its Board of Directors, shall, subject to and in accordance with applicable law and its Certificate of Incorporation, as amended, and its By-Laws, promptly and duly call, give notice of, convene and hold as soon as practicable following the date upon which the Form S-4 becomes effective, a meeting of the holders of Company capital stock for the purpose of voting to approve and adopt this Agreement and the transactions contemplated hereby, and (i) except as required to comply with the fiduciary duties of the Board of Directors as advised by outside counsel, recommend approval and adoption of this Agreement and the transactions contemplated hereby, by the stockholders of the Company and include in the Proxy Statement such recommendation and (ii) except as required to comply with the fiduciary duties of the Board of Directors as advised by outside counsel, take all reasonable action to solicit and obtain such approval. Terremark, acting through its Board of Directors, shall, subject to and in accordance with applicable law and its Certificate of Incorporation, as amended, and its By-Laws, promptly and duly call, give notice of, convene and hold as soon a practicable following the date on which the Form S-4 becomes effective a meeting of the holders of Terremark Common Stock for the purpose of voting to approve and adopt this Agreement and the transactions contemplated hereby and (i) except as required to comply with the fiduciary duties of the Board of Directors as advised by outside counsel, recommend approval and adoption of this Agreement and the transactions contemplated hereby, by the shareholders of Terremark and include in the Proxy Statement such recommendation and (ii) except as required to comply with the fiduciary duties of the Board of Directors as advised by outside counsel, take all reasonable action to solicit and obtain such approval. (b) The Company, as promptly as practicable, shall cause the 16 21 definitive Proxy Statement to be mailed to their respective stockholders. 3.6. Stock Exchange Listing. The Company shall use its reasonable best efforts to cause the Post Merger Common Stock to be issued in connection with the Merger to be approved for listing on AMEX, subject to official notice of issuance. 3.7. Reasonable Best Efforts. Each of the Company and Terremark shall, and each shall cause its respective Subsidiaries to, cooperate and use their respective reasonable best efforts to take, or cause to be taken, all appropriate action, and to make, or cause to be made, all filings necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, their respective reasonable best efforts to obtain, prior to the Closing Date, all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and parties to contracts with the Company and its Subsidiaries as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions to the Merger; provided, however, that no loan agreement or contract for borrowed money shall be repaid except as currently required by its terms, in whole or in part, and no contract shall be amended to increase the amount payable thereunder or otherwise to be more burdensome to the Company or any of its Subsidiaries in order to obtain any such consent, approval or authorization without first obtaining the written approval of Terremark. 3.8. Supplemental Disclosure. Each of the Company and Terremark shall give the other party prompt notice of (i) the occurrence, or non-occurrence, of any event the occurrence, or non-occurrence, of which would be likely to cause (x) any representation or warranty contained in this Agreement to be untrue or inaccurate or (y) any covenant, condition or agreement contained in this Agreement not to be complied with or satisfied and (ii) any failure of the Company or Terremark, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section shall not have any effect for the purpose of determining the satisfaction of the conditions set forth in Article IV of this Agreement or otherwise limit or affect the remedies available hereunder to any party. 3.9. Officers' and Directors' Insurance; Indemnification. The Surviving Corporation will, (i) for a period of three years commencing at the Effective Time, maintain all rights to indemnification now existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-Laws, with respect to acts and omissions occurring prior to the Effective Time; provided, however, that the Surviving Corporation will not be liable for any settlement effected without its consent; and (ii) for a period of three years commencing at the Effective Time, use its reasonable best efforts to maintain a policy or policies of directors' and officers' liability insurance covering directors and officers of the Company and having such terms no less favorable than the policies presently maintained by the Company on the date of this Agreement (true and correct copies of which have been delivered to Terremark) with respect to acts and omissions occurring prior to the Effective Time; provided further that such insurance coverage shall continue to be available and provided that the annual premium therefor shall not exceed $110,000 (the "Maximum Amount") to maintain or procure such insurance coverage; and provided further that if the Surviving Corporation shall be unable to maintain or obtain such insurance coverage as called for by this Section 3.9(ii), the Surviving Corporation will maintain or obtain, for the remainder of such three year period, as much comparable insurance as shall be available for the Maximum Amount. 3.10. Letters of Company's Accountants. -------------------------------- (a) The Company shall use reasonable best efforts to cause to be delivered to the Company and to Terremark two letters from Deloitte & Touche LLP, one dated no earlier than three business days prior to the date on which the Form S-4 shall become effective and one dated no earlier than three business days prior to the Closing Date, each addressed to the Boards of Directors of the Company and Terremark, in form reasonably satisfactory to the Company and Terremark and customary in scope for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. (b) Terremark shall use reasonable best efforts to cause to be delivered to the Company and to Terremark two letters from PricewaterhouseCoopers, one dated no earlier than three business days prior to the date on which the Form S-4 shall become effective and one dated no earlier than three business days prior to the Closing Date, each addressed to the Boards of Directors of the Company and Terremark, in form reasonably satisfactory to the Company and Terremark and customary in scope for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. 3.11. Takeover Statutes. If any anti-takeover or similar statute or regulation is or may become applicable to the transactions contemplated hereby, each of the parties and its Board of Directors shall grant such approvals and take all such actions as are legally permissible so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate 17 22 or minimize the effects of any such statute or regulation on the transactions contemplated hereby. 3.12. U.S. Real Property Holding Company Covenant. For such period of time as the Vistagreen Group (as defined in the Purchase Agreement) holds, in the aggregate, Holders Stock acquired pursuant to the Purchase Agreement (as hereinafter defined) representing at least 1% of the outstanding shares of Common Stock of the Company, the Company shall not be or become a United States Real Property Holding Corporation as defined in Section 897(c)(2) of the Code nor shall the Holders Stock acquired pursuant to the Purchase Agreement be or become a United States Real Property Interest as defined in Section 897(c)(1)(A)(ii) of the Code. In addition, as of each determination date (as defined in Treasury Regulation Section 1.897-2(c)), including particularly a date of disposition, the Company shall provide to each member of the Vistagreen Group a statement complying with Treasury Regulation Section 1.897-2(g)(1)(ii) and shall also comply, on a timely basis, with the notice requirements of Treasury Regulation Section 1.897-2(h) including without limitation, timely notice to the Internal Revenue Service as provided in that Treasury Regulation, with a copy to each member of the Vistagreen Group, together with other Supporting Documents (as defined in that certain Stock Purchase Agreement by and between Vistagreen Holdings (Bahamas), Ltd. and the Company as of the date hereof (the "Purchase Agreement")), but dated as of the determination Date. Any notice conforming with or under Treasury Regulation Section 1.897-2(h) need address the status of the Company as a United States Real Property Holding Corporation and the status of the Company shares as a United States Real Property Interest only from a date that is no earlier than the day that is thirty days prior to the Effective Date. These covenants shall in all respects survive the Closing of this Agreement. The "Vistagreen Group," as used herein, shall have the same meaning as in the Purchase Agreement. ARTICLE IV CONDITIONS PRECEDENT TO MERGER 4.1. Conditions Precedent to Obligations of Terremark and the Company. The respective obligations of Terremark, on the one hand, and the Company, on the other hand, to effect the Merger are subject to the satisfaction or waiver (subject to applicable law), at or prior to the Effective Time, of each of the following conditions: (a) Approval of Company's Stockholders. This Agreement and the Merger shall have been approved and adopted by the requisite vote or consent of the stockholders of the Company in accordance with applicable law, the provisions of the Company's Certificate of Incorporation and By-Laws, and the requirements of the AMEX; (b) Registration Statement. The Form S-4 shall have become effective in accordance with the provisions of the Securities Act. No stop order suspending the effectiveness of the Form S-4 shall have been issued by the SEC and no proceedings for that purpose shall have been initiated by the SEC. (c) Litigation. There shall not have been instituted or be pending any suit, action or proceeding by any governmental entity as a result of this Agreement or any of the transactions contemplated hereby with questions the validity or legality of the transactions contemplated by this Agreement. (d) Injunction. No injunction or other order shall have been issued by any court or by any governmental or regulatory agency, body or authority which is then in effect and has the effect of making the Merger illegal or otherwise prohibiting the consummation of the Merger; (e) Statutes. No statute, rule, regulation, executive order, decree or order of any kind shall have been enacted, entered, promulgated or enforced by any court or governmental authority which prohibits the consummation of the Merger; and (f) AMEX Listing. The shares of Post Merger Common Stock to be issued pursuant to the Merger shall have been approved for listing on the AMEX, upon final notice of issuance. 4.2. Conditions Precedent to Obligations of Terremark. The obligations of Terremark to effect the Merger are also subject to the satisfaction or waiver by Terremark, at or prior to the Effective Time, of each of the following conditions: (a) Accuracy of Representations and Warranties. All representations and warranties of the Company contained herein shall be true and correct in all material respects as of the date hereof and at and as of the Closing, with the same force and effect as though made on and as of the Closing Date (except as to any such representation and warranty which relates to a specific date, which shall be true and correct as of such specific date), except with respect to any such items which do not have, individually or in the aggregate, a Material Adverse Effect on the Company; and Terremark shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect; (b) Performance by Company. The Company shall have performed in 18 23 all material respects all obligations and agreements, and complied in all material respects with all covenants and conditions, contained in this Agreement to be performed or complied with by it prior to the Closing Date; and Terremark shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect; (c) Tax Opinion Letter. Terremark shall have received the opinion of counsel reasonably satisfactory to Terremark in form and substance reasonably satisfactory to Terremark, on the basis of customary representations and assumptions set forth in such opinion, dated the Effective Time, to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the Code, (ii) each of the Company and Terremark will be a party to the reorganization within the meaning of Section 368(b) of the Code, (iii) a Terremark shareholder will not recognize gain or loss on the receipt of Post Merger Common Stock in exchange for Terremark Common Stock pursuant to the Merger, except with respect to any cash received in lieu of a fractional share, (iv) the adjusted tax basis of the Post Merger Common Stock that a Terremark shareholder receives pursuant to the Merger will be equal to the adjusted tax basis of the Terremark Common Stock exchanged therefor, reduced by the amount of any basis allocable to any fractional share, and (v) the holding period of Post Merger Common Stock that a Terremark shareholder receives pursuant to the Merger will include the holding period of the Terremark common Stock exchanged therefor (provided that Terremark Common Stock is held as a capital asset at the Effective Time). In rendering its opinion, counsel shall be entitled to rely upon customary representations of officers of the Company and Terremark reasonably requested by counsel; (d) Letters of Company Accountants. Terremark shall have received the Accountants Letters set forth in Section 3.10; (e) Employment Agreement. Joseph Wright, Jr. Shall have entered into an employment contract in form and substance acceptable to Terremark which shall provide for, among other things, an annual salary of $250,000 and a surrender by him of all options to purchase shares of Common Stock other than 1,000,000 options exercisable at $3.00 per share and the 2,000,000 options exercisable at $0.35 per share, none of which shall be exercised until at least one year after the Effective Time; and (f) Stock Purchase Agreement. The Stock Purchase Agreement by and between the Company and Vistagreen Holdings (Bahamas), Ltd., a Bahamian international business corporation ("Vistagreen") executed concurrently herewith (the "Stock Purchase Agreement") shall be in full force and effect, with all conditions precedent thereto (other than the consummation of this Agreement) having been satisfied, all representations and warranties of Vistagreen true and correct and with the parties hereto having no reasonable basis to believe that the transactions contemplated in the Stock Purchase Agreement would not be closed immediately after the Effective Time. 4.3. Conditions Precedent to Obligation of the Company. The obligation of the Company to effect the Merger is also subject to the satisfaction or waiver by the Company, at or prior to the Effective Time, of each of the following conditions: (a) Accuracy of Representations and Warranties. All representations and warranties of Terremark contained herein shall be true and correct in all material respects as of the date hereof and at and as of the Closing, with the same force and effect as though made on and as of the Closing Date (except as to any such representation and warranty which relates to a specific date, which shall be true and correct as of such specific date), except with respect to any such items which do not have, individually or in the aggregate, a Material Adverse Effect on Terremark; and the Company shall have received a certificate signed on behalf of Terremark by the chief executive officer or the chief financial officer of Terremark to such effect; (b) Performance by Terremark. Terremark shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants and conditions, contained in this Agreement to be performed or complied with by it prior to the Closing Date; and the Company shall have received a certificate signed on behalf of Terremark by the chief executive officer or the chief financial officer of Terremark to such effect. (c) Letters of Terremark Accountants. The Company shall have received the Accountants Letters set forth in Section 3.10. (d) Lock Up Letters. Each holder of Terremark Common Stock immediately prior to the Effective Time ("Terremark Holder") shall have executed a letter in form and substance reasonably satisfactory to the Company providing that such holder shall not, except as provided below, sell, offer to sell, pledge or otherwise dispose of any interest in the Post Merger Common Stock for a period of not less than one (1) year after the Effective Time; provided, however, that nothing contained herein shall preclude (i) open market sales pursuant to Rule 144 or (ii) sales by any Terremark Holder to Terremark, any Affiliate of Terremark or another Terremark Holder, or to any member of the Vistagreen Group or Affiliate of the Vistagreen Group. The term "Affiliate" as used herein shall mean any person that directly or indirectly, through one or more intermediaries, 19 24 controls, or is controlled by, or is under common control with, such person. ARTICLE V TERMINATION AND ABANDONMENT 5.1. Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned, at any time prior to the Effective Time, whether before or after approval of the Merger by the Company's stockholders: (a) by mutual consent of the Board of Directors of the Company and Terremark; (b) by the Board of Directors of Terremark or the Company if the Effective Time shall not have occurred by July 1, 2000 through no fault of the terminating party; (c) by either of the parties, if any permanent injunction, order, decree or ruling by any governmental entity or competent jurisdiction preventing the consummation of the Merger shall become final and nonappealable; (d) by the Board of Directors of Terremark or the Company if there has been a material breach of any representation, warranty, obligation, covenant, agreement or condition set forth in this Agreement on the part of the other party; provided, however, that each of the Company and Terremark shall have the right to cure any such breach within three days of written notice of any such breach given by the other party; (e) by the Board of Directors of Terremark or the Company if the approval of this Agreement and the Merger by the required number of holders of the Common Stock shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting (including any adjournment or postponement thereof) of the Company's stockholders or any adjournment thereof; provided, however, that if the failure to obtain such required vote is the result of the failure of the Company to obtain a quorum at its meeting of stockholders, the Company will immediately call an additional meeting if so requested by Terremark; or (f) by the Board of Directors of Terremark or the Company if the Board of Directors of the Company shall have withdrawn or modified its approval or recommendation of the Merger in any manner adverse to Terremark; provided, however, that the right to terminate the Agreement shall not be available to a party that has breached in any material respect its obligations under the Agreement in any manner that shall have proximately contributed to the failure of the Merger to be consummated. 5.2. Effect of Termination. In the event of the termination of this Agreement pursuant to Section 5.1 hereof by Terremark or the Company, written notice thereof shall promptly be given to the other party specifying the provision hereof pursuant to which such termination is made, and this Agreement shall become void and have no effect, and there shall be no liability hereunder on the part of Terremark or the Company, except that Sections 3.2, 6.1 and 6.2 hereof shall survive any termination of this Agreement. Nothing in this Section 5.2 shall relieve any party to this Agreement of liability for breach of this Agreement. ARTICLE VI MISCELLANEOUS 6.1. Fees and Expenses. (a) Except as set forth in Section 6.2 below, all costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. 6.2. Negotiations (a) The Company and its Agents shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). From and after the date hereof until the Closing, the Company shall not, nor shall it permit any of its Agents or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information or assistance), or knowingly take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding any Acquisition Proposal; provided, however, that if, at any time the Board of Directors of the Company determines in good faith, after consultation with independent legal counsel (who may be the Company's regularly engaged independent counsel), that it may be necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to an unsolicited Superior Proposal, and subject to compliance with Section 20 25 6.2(c), (x) furnish information with respect to the Company to the person making such unsolicited Superior Proposal pursuant to a confidentiality agreement in a form approved by the Company, and (y) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of 20% or more of the assets of the Company or 20% or more of any class of equity securities of the Company, any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of the Company, any merger, consolidation, business combination, sale of all or substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company (other than the transactions between the parties hereto contemplated by this Agreement or ordinary course trading of the Common Stock on the AMEX), or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which could reasonably be expected to materially dilute the benefits to the Terremark shareholders of the transactions contemplated hereby. For purposes of this Agreement, a "Superior Proposal" means any bona fide Acquisition Proposal made by a third party on terms which the Board of Directors of the Company determines in its good faith judgment (after consultation with an experienced investment banker) to be more favorable to the Company stockholders than the terms of the Merger set forth in this Agreement. (b) Except as set forth in this Section 6.2, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Terremark, the approval or recommendation of this Agreement or the Merger by such Board of Directors or such committee, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (iii) cause the Company to enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, in the event that the Board of Directors of the Company determines in good faith, after consultation with independent legal counsel (who may be the Company's regularly engaged independent counsel), that it may be necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company may (subject to the other provisions of this Article VI) withdraw or modify its approval or recommendation of this Agreement and the Merger, approve or recommend a Superior Proposal, cause the Company to enter into an agreement with respect to a Superior Proposal or terminate this Agreement, but in each case only at a time that is after the fifth business day following Terremark's receipt of written notice (a "Notice of Superior Proposal") advising Terremark that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal. Upon receiving the Notice of Superior Proposal, Terremark shall have the opportunity to amend this Agreement. If after such amendment, the Board of Directors of the Company still determines in good faith that the Acquisition Proposal constitutes a Superior Proposal, the Board may then (1) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Terremark, the approval or recommendation of this Agreement or the Merger by such Board of Directors or such committee, (2) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (3) cause the Company to enter into any agreement with respect to any Acquisition Proposal; provided, however, that in doing so, the Company shall concurrently pay, or cause to be paid, to Terremark the fees set forth below in this Section 6.2. (c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 6.2, the Company shall promptly advise Terremark orally and in writing of any request for information or of any Acquisition Proposal, the material terms and the financial consideration in respect of such request or Acquisition Proposal and the identity of the person making such request or Acquisition Proposal. (d) Nothing contained in this Section 6.2 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with independent legal counsel (who may be the Company's regularly engaged independent counsel), failure so to disclose would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law. (e) The Company acknowledges that Terremark, in proceeding with the transactions contemplated herein, has foregone the opportunity to consummate a transaction in which it would have earned a commission in the amount of $3.0 million (the "Foregone Commission"). (f) In the event the Company terminates this Agreement pursuant to Section 5.1(f), or Terremark terminates pursuant to Sections 5.1(d) or 5.1(f), the Company shall pay Terremark (A) all fees and expenses incurred by Terremark in connection with the transactions contemplated hereby, up to a limit of $200,000 and (B) an amount equal to the Foregone Commission, all within three (3) days of any such termination. In the event the Company executes a definitive agreement pursuant to a Superior Proposal within twelve (12) months after the termination of this Agreement pursuant to the first sentence of this Section 6.2(f), the Company shall, in addition to the applicable amounts set forth in the preceding sentence, also pay to Terremark an amount equal to 25% of the difference between (x) the 21 26 valuation of the Company used to formulate the Superior Proposal and (y) the valuation of the Company used to formulate the transaction pursuant to this Agreement. The foregoing amount shall be due and owing to Terremark regardless of whether the transactions contemplated by the Superior Proposal are ultimately consummated by the Company. (g) The provisions of this Section 6.2 will survive the termination of this Agreement prior to the Closing. 6.3. Survival of Representations and Warranties. The respective representations and warranties of the Company and Terremark contained herein or in any certificates or other documents delivered prior to or at the Closing shall not be deemed waived or otherwise affected by any investigation made by any party. Each and every such representation and warranty shall expire with, and be terminated and extinguished by, the Closing and thereafter neither of the Company nor Terremark shall be under any liability whatsoever with respect to any such representation or warranty. This Section 6.3 shall have no effect upon any other obligation of the parties hereto, whether to be performed before or after the Effective Time. 6.4. Extension; Waiver. At any time prior to the Effective Time, the parties hereto, by action taken by or on behalf of the respective Boards of Directors of the Company or Terremark, may (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties contained herein by any other applicable party or in any document, certificate or writing delivered pursuant hereto by any other applicable party or (iii) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. 6.5. Public Announcements. Terremark and the Company will consult with each other before issuing any press release or making any public statement with respect to this Agreement and the transactions contemplated hereby and shall not issue any press release or make any public statement without the prior consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, any such press release or public statement as may be required by applicable law or any listing agreement with any national securities exchange may be issued (a) prior to such consultation, if the party making the release or statement has, in light of the applicable timing, used its reasonable efforts to consult with the other party and (b) without the consent of the other party. 6.6. Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person or mailed, certified or registered mail with postage prepaid, or sent by telecopier, as follows: (a) if to the Company, to it at: AMTEC, INC. 599 Lexington Avenue, 44th Floor New York, NY 10002 Facsimile Number: (212) 319-9288 Attention: Karin-Joyce Tjon with a copy to: Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, NY 10022 Attention: Edmund C. Duffy, Esq. (b) if to Terremark, to it at: Terremark Holdings Inc. c/o Terremark Group, Inc. 2601 S. Bayshore Drive, PH-1B Coconut Grove, FL 33133 Facsimile: (305) 856-8190 Attention: Brian K. Goodkind, Esq. with a copy to: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 Facsimile: (305) 579-0717 Attention: Paul Berkowitz, Esq. or to such other Person or address as any party shall specify by notice in writing to each of the other parties. All such notices, requests, demands, waivers and communications shall be deemed to have been received on the date of delivery unless if mailed, in which case on the third business day 22 27 after the mailing thereof except for a notice of a change of address, which shall be effective only upon receipt thereof. 6.7. Entire Agreement; Severability. This Agreement and the annex, schedules and other documents referred to herein or delivered pursuant hereto, and the Promissory Note and Security Agreement executed by the Company in favor of Terremark collectively contain the entire understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior agreements and understandings, oral and written, with respect thereto, including the letter of intent dated November 9, 1999 previously entered into by the parties. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect (a) if such provision is enforceable in part, such provision shall be enforced to the maximum extent permissible under applicable law, and (b) the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided, however, that if enforcement of the Agreement without giving effect to an invalid or unenforceable provision would deny either party the benefit of the transaction contemplated hereby, then the Agreement as a whole will terminate. 6.8. Binding Effect; Benefit; Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. 6.9. Amendment and Modification. Subject to applicable law, this Agreement may be amended, modified and supplemented in writing by the parties hereto in any and all respects before the Effective Time (notwithstanding any stockholder approval), by action taken by the respective Boards of Directors of Terremark and the Company or by the respective officers authorized by such Boards of Directors, provided, however, that after any such stockholder approval, no amendment shall be made which by law requires further approval by such stockholders without such further approval. 6.10. Further Actions. Each of the parties hereto agrees that, subject to its legal obligations, it will use its best efforts to fulfill all conditions precedent specified herein, to the extent that such conditions are within its control, and to do all things reasonably necessary to consummate the transactions contemplated hereby. 6.11. Interpretation; Headings. Any matter required to be disclosed in any Schedule which was not disclosed therein shall be deemed to have been disclosed in the correct Schedule to the extent such matter was reasonably specifically cross-referenced to another Schedule containing such disclosure. The parties agree that certain agreements and other matters may be listed in a Schedule for informational purposes only, notwithstanding that, because they do not rise to the applicable materiality thresholds or otherwise, they are not required to be listed therein by the terms of this Agreement. In no event shall the listing of any such Contract or the inclusion of any other matter in any Schedule be deemed or interpreted to broaden or otherwise amplify the representations and warranties or covenants contained in this Agreement. Furthermore, the disclosure of any particular item or items of information in any Schedule shall not be taken as an admission that such disclosure is required to be made under the terms of any such representations and warranties (including any admission that any such items establish the required level of materiality). The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. 6.12. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. 6.13. Applicable Law. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws rules thereof. 6.14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 6.15. "Person" Defined. "Person" shall mean and include an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, a group and a government or other department or agency thereof. IN WITNESS WHEREOF, each of Terremark and the Company have caused this Agreement to be executed by their respective officers thereunto duly 23 28 authorized, all as of the date first above written. TERREMARK HOLDINGS, INC. /s/ Manuel D. Medina Chairman & Chief Executive Officer AMTEC, INC. /s/ Joseph R. Wright, Jr. Chairman & Chief Executive Officer AMENDMENT TO AGREEMENT AND PLAN OF MERGER THIS ADMENDMENT TO AGREEMENT AND PLAN OF MERGER is dated as of February 11, 2000 ("Amendment"), and is made by and between Terremark Holdings, Inc. a Florida Corporation ("Terremark'), and AmTec, Inc., a Delaware corporation ("AmTec"). WHEREAS, the parties entered into that certain Agreement and Plan of merger dated as of November 24, 1999 (the "Merger Agreement"); and WHEREAS, the parties desire to hereby amend the Merger Agreement, as set forth herein, effective as of the date forth set forth above. NOW THEREFORE, for good and valuable consideration, the parties hereto agree as follows (all capitalization terms not herein defined shall have the meaning set forth in the Merger Agreement): 1. Terremark and AmTec have determined to prepare and submit to the stockholders of AmTec a proxy statement and to delay the filing of a registration statement (which shall be made on a Form S-3 or similar form) with the SEC relating to the share to be issued in the Merger Agreement and to be sold pursuant to the Stock Purchase Agreement until the Effective Time. All references to the Form S-4, and all obligations, representations, warranties and references thereto are deemed to be eliminated from the Merger Agreement. 2. Section 1.6 is revised and restated in its entirety to read as follows: 1.6 Certificate of Incorporation of the Surviving Corporation. The Certificate of Incorporation of the Company, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the Surviving Corporation; provided, however, that the name of the Surviving Corporation shall be Terremark Worldwide, Inc. and that the total number of shares of capital stock that the Company is authorized to issue is 300,000,000 shares of common stock. 3. The following section is added as a new Section 2.2(w): Investment Intent. Terremark represents and warrants that, to its knowledge, the holders of Terremark Common Stock (i) are taking the Post Merger Common Stock issued to them for investment purposes and not with a view to distribution thereof, and that they (ii) agree not to make any sale, transfer or other disposition of the Post Merger Common Stock in violation of any applicable securities law. 4. Section 4.2 (c) is revised and restated in its entirety to read as follows: Tax Opinion Letter. Terremark shall have received the option of counsel reasonably satisfactory to Terremark in form and substance reasonably satisfactory to Terremark, on the basis of customary representations and assumptions set forth in or attached to such opinion, dated the Effective Time, to the effect that (i) the Merger will be treated for federal income tax purposes as a reorganization qualifying under the provisions of Section 368(a) of the code, (ii) each of the Company and Terremark will be a party to the reorganization within the meaning of Section 368(a) of the Code 368(b) of the Code, (iii) a Terremark shareholder that is a United States person within the meaning of Section 7701(a)(30) of the Code (a "U.S. Terremark Shareholder") will not recognize gain or loss on the receipt of Post Merger Common Stock in exchange for Terremark Common Stock pursuant to the Merger, except with respect to any cash received in lieu of a fractional share, (iv) the adjusted tax basis of the Post Merger Common Stock that a U.S. Terremark Shareholder receives pursuant to the Merger will be equal to the adjusted tax basis of the Terremark Common Stock exchanged therefor, reduced by the amount of any basis allocable to any fractional share, and (v) the holding period of Post Merger Common Stock that a U.S. Terremark shareholder receives pursuant to the Merger will include the holding period of the Terremark common Stock exchanged therefor (provided that Terremark Common Stock is held as a capital asset at the Effective Time.) In rendering its opinion, counsel shall be entitled to rely upon customary representations of officers of the Company and 24 29 Terremark reasonably requested by counsel; 5. Section 4.3(d) is revised and restated in its entirety to read as follows: Lock Up Letters. Each holder of Terremark Common Stock immediately prior to the Effective Time ("Terremark Holder") shall have executed a letter in form and substance reasonably satisfactory to the Company providing that such holder shall not, except as provided below, sell offer to sell or otherwise dispose of any interest in the Post Merger Common Stock for a period of not less that one year after the Effective Time; provided, however, that nothing contained herein shall preclude (i) open market sales in an amount which would be permitted under that volume limitations of Rule 145, as if such rule were applicable, or (ii) sales by any Terremark Holder to Terremark, any Affiliate of Terremark or another Terremark Holder, or to any member of the Vistagreen Group of Affiliate of the Vistagreen Group. The term "Affiliate" as used herein shall mean any person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. 6. The following section is added as a new Section 4.3(e): Stock Purchase Agreement. The Stock Purchase Agreement shall be in full force and effect, with all conditions precedent thereto (other than the consummation of this Agreement) having been satisfied, all representations and warranties of this Agreement) having been satisfied, all representations and warranties of Vistagreen true and correct and with the parties hereto having no reasonable basis to believe that the transactions contemplated in the Stock Purchase Agreement would not be closed immediately after the Effective Time. 7. The following section is added as a new Section 3.13: Stock Option Grants. The parties agree to take all actions necessary or appropriate to cause the Company or the Surviving Corporation, as appropriate, to approve the grant of a total of up to 750,000 stock options to purchase Post Merger Common Stock under the Company's Amended and Restated 1996 Stock Option Plan (the "Plan") to such individuals as shall be designated by Terremark. Such grants shall be made as of the Closing Date, and shall be made in accordance with the following terms: (a) the options shall be granted with an exercise price equal to the Fair Market Value of Common Stock as defined in the Plan (i.e. the closing sales price of the shares on the date of grant on the American Stock Exchange), (b) the options shall vest over a three year period (i.e. at the rate of 1/3 on each anniversary of the date of grant), except as otherwise set forth herein, (c) in the event of a Change in Control of the Surviving Corporation (as defined in the Plan) the options shall expire in a ten (10) year period. 8. Each of the parties hereto agrees that it will use its commercially reasonable best efforts to do all things reasonably necessary to consummate the transactions contemplated hereby. 9. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. 10. This Amendment and the legal relations between the parties hereto shall be goverened by and constructed in accordance with the laws of the State of Delaware, without regard to the conflict of the laws rules thereof. 11. Except as specifically amended by the Amendment, all terms and conditions of the Merger Agreement shall remain unchanged and in full force and effect. 12. The parties hereby acknowledge and consent to the amendment as of the date hereof to that certain Stock Purchase Agreement by and between Vistagreen Holdings (Bahamas), Ltd., a Bahamian international business company and AmTec, Inc., a Delaware Corporation dated as of November 24, 1999. IN WITNESS WHEREOF, each of Terremark and AmTec have caused this Amendment to Agreement and Plan of Merger to be executed by their respective offices thereunto duly authorized, all as of the date first above written. TERREMARK HOLDINGS, INC. /s/ Brian K. Goodkind --------------------------------- Executive Vice-President AMTEC, INC. /s/ Joseph R. Wright, Jr. --------------------------------- Chairman & Chief Executive Officer 25 EX-99.3 4 0004.txt STOCK PURCHASE AGREEMENT 1 EXHIBIT 3 ============================================================================== STOCK PURCHASE AGREEMENT BY AND BETWEEN VISTAGREEN HOLDINGS (BAHAMAS), LTD. AND AMTEC, INC. Dated as of November 24, 1999 ============================================================================== 2 TABLE OF CONTENTS Page ARTICLE I PURCHASE AND SALE OF STOCK.....................................1 1.1. Note Proceeds.....................................................1 1.2. Purchase and Sale of Post-Merger Common Stock.....................2 1.3. Closing...........................................................2 ARTICLE II REPRESENTATIONS AND WARRANTIES.................................3 2.1. Representations and Warranties of the Company.....................3 (a) Due Organization, Good Standing and Corporate Power..........3 (b) Authorization and Validity of Agreement......................3 (c) Capitalization...............................................4 (d) Consents and Approvals; No Violations........................5 (e) Company Reports and Financial Statements.....................5 (f) Absence of Certain Changes...................................6 (g) Title to Properties; Encumbrances............................7 (h) Compliance with Laws.........................................7 (i) Litigation...................................................7 (j) Government Authorization.....................................8 (k) Insurance....................................................8 (l) Casualties...................................................8 (m) Propriety of Past Payments...................................8 (n) Employment Relations and Agreements..........................9 (o) Client Relations.............................................9 (p) Sufficiency of Assets.......................................10 (q) Contracts and Commitments...................................10 (r) Disclosure Documents........................................10 (s) Full Disclosure.............................................10 2.2. Representations and Warranties of the Vistagreen Group...........11 (a) Accredited Investor.........................................11 (b) Capitalization..............................................11 ARTICLE III REGISTRATION RIGHTS...........................................11 3.1. Shelf Registration...............................................11 3.2. Expenses of Registration.........................................12 3.3. Registration Procedures..........................................12 3.4. Indemnification..................................................14 3.5. Information by the Holders.......................................17 3.6. Holdback Agreement; Postponement.................................17 3.7. Assignment.......................................................17 3.8. Remedies.........................................................17 3.9. Lockup...........................................................17 ARTICLE IV ADDITIONAL AGREEMENTS.........................................18 4.1. United States Real Property Interests............................18 ARTICLE V CONDITIONS PRECEDENT..........................................18 3 5.1. Conditions Precedent to Obligations of Vistagreen Group..........18 (a) Closing of Merger Agreement.................................18 (b) Accuracy of Representations and Warranties..................18 (c) Sale of Property............................................18 (d) United States Real Property Holding Company.................18 (e) Legal Opinion...............................................19 (f) Approval of Company's Stockholders..........................19 (g) Registration Statement......................................19 (h) Litigation..................................................20 (i) Injunction..................................................20 (j) Statutes....................................................20 (k) AMEX Listing................................................20 (l) Performance by Company......................................20 (m) Letters of Company Accountants..............................20 (n) Employment Agreement........................................20 5.2. Conditions Precedent to Obligations of the Company...............21 (a) Accuracy of Representations and Warranties..................21 (b) Merger Agreement Closing....................................21 ARTICLE VI TERMINATION AND ABANDONMENT...................................21 6.1. Termination......................................................21 6.2. Effect of Termination............................................22 ARTICLE VII MISCELLANEOUS.................................................22 7.1. Fees and Expenses................................................22 7.2. Survival of Representations and Warranties.......................22 7.3. Extension; Waiver................................................23 7.4. Notices..........................................................23 7.5. Entire Agreement; Severability...................................24 7.6. Binding Effect; Benefit; Assignment..............................24 7.7. Amendment and Modification.......................................24 7.8. Further Actions..................................................25 7.9. Interpretation; Headings.........................................25 7.10.Counterparts.....................................................25 7.11.Applicable Law...................................................25 7.12.Severability.....................................................25 ARTICLE VIII DEFINITIONS...................................................26 4 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated as of November 24, 1999 ("Agreement"), by and between Vistagreen Holdings (Bahamas), Ltd., a Bahamian international business company ("Purchaser"), and AMTEC, INC., a Delaware corporation (the "Company"). WHEREAS, as of the date hereof, Terremark Holdings, Inc., a Florida corporation ("Terremark") and the Company have entered into that certain Agreement and Plan of Merger pursuant to which Terremark shall merge (the "Merger")with and into the Company with the Company being the surviving entity (the "Merger Agreement"); WHEREAS, as of the date hereof, Terremark and certain of its Affiliates (the "Terremark Group") and Purchaser and its Affiliates (the "Vistagreen Group") have entered into that certain Contract for Purchase and Sale, pursuant to which Terremark is purchasing, and the Vistagreen Group is selling, the general and limited partnership interests (the "Partnership Interests") of Terremark Center, Ltd., a Florida limited partnership (the "Purchase Contract"); WHEREAS, upon the closing of the Purchase Contract, the Vistagreen Group will receive certain promissory notes in the aggregate amount of $56,000,000 less the outstanding balance of the first mortgage loan on the property legally described in Exhibit A to the Purchase Contract (the "Property") in favor of Principal Mutual Insurance Company, in payment of the purchase price for the sale of the Partnership Interests to the Terremark Group (the "Note"); and WHEREAS, in connection with the sale of the Property, the Note shall be required to be satisfied in full and, subject to certain conditions, all such proceeds so paid to satisfy the Note in full ("Note Proceeds") shall be used to purchase certain shares of the Company as set forth herein. NOW, THEREFORE, in consideration of the premises and of the mutual covenants, representations, warranties, conditions and agreements herein contained, the parties hereto agree as follows (all capitalized terms not herein defined shall have the same meaning as set forth in the Merger Agreement): 1 5 ARTICLE I PURCHASE AND SALE OF STOCK 1.1. Note Proceeds. The parties acknowledge that for the closing of the transactions contemplated by this Agreement (the "Closing") to occur, the Property must have been sold. Upon the sale of the Property, the Terremark Group shall be required to pay the Note Proceeds into an interest-bearing account in the name of ACGDI, Inc., Terremark at Bayshore, Inc. and Terremark Centre, Inc. or their permitted assignees, who at such time hold the note (the "Holders"), at Northern Trust Bank of Florida, N.A. (the "Escrow Account"). There shall be two authorized signatories (the "Representatives") with respect to such Escrow Account, one representing the Holders and the other representing Terremark. The initial Representative of the Holders shall be Joel J. Karp, Esq., and the initial Representative of Terremark shall be Brian K. Goodkind, Esq. Any withdrawals from the Escrow Account shall require the signature of both such Representatives. The Holders and Terremark, respectively, agree to cause their respective Representatives to disburse funds from the Escrow Account in accordance with the provisions of this Agreement. 1.2. Purchase and Sale of Post-Merger Common Stock. Upon the Merger Agreement Closing, the Surviving Corporation will sell to the Vistagreen Group and the Vistagreen Group will purchase from the Surviving Corporation such number of Registered shares of Post Merger Common Stock of the Surviving Corporation which represents 35% of the issued and outstanding Post-Merger Common Stock of the Surviving Corporation on a fully diluted basis ("Holders Stock"). As used herein, any calculation of shares on a "fully diluted basis" shall mean a calculation of share ownership that assumes that all options granted under any incentive or other plan of the Company have been exercised, that all warrants to purchase securities of the Company or the Surviving Corporation have been exercised and that all rights to convert any security or other instrument, including, without limitation, Series E and G Preferred Stock of the Company, into Common Stock or Post Merger Common Stock have been exercised, each such exercise to be deemed to have occurred immediately prior to the issuance of the Post-Merger Common Stock to the Holders. As used herein "Registered" shares shall mean shares which are registered for lawful public sale pursuant to a registration statement which has been declared effective by the SEC (and with respect to which no stop order suspending effectiveness of the same shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC) under applicable federal and state securities laws and which have been approved for listing on the AMEX, subject to final notice of issuance. The purchase price to be paid by the Vistagreen Group for the Holders Stock shall be an amount equal to the Note Proceeds, together with all interest earned thereon. At the Closing, the Surviving Corporation shall deliver to the Vistagreen Group certificates in the aggregate representing the Holders Stock, which certificates shall be in such denominations as the Vistagreen Group reasonably request, such request to be delivered to the Surviving Corporation in writing at least three (3) business days prior to the Closing. Notwithstanding anything herein to the contrary, if the Merger Agreement Closing has not occurred on or before December 31, 2000, then the obligation of the Vistagreen Group to purchase the Holders Stock shall immediately terminate and be of no further force and effect. In such event, on the first business day in January 2001, Terremark and the Holders shall each cause their respective Representatives to disburse all funds which then remain in the Escrow Account to the Vistagreen Group in accordance with the Purchase Contract and such instructions as the Vistagreen Group shall deliver to such Representatives. 1.3. Closing. The Closing shall take place at the same place as and immediately following the Merger Agreement Closing. Notwithstanding anything herein to the contrary, in the event that any condition precedent to the obligation of the Vistagreen Group to purchase the Holders Stock hereunder is not satisfied as of the Merger Agreement Closing, the Vistagreen Group shall not be required to so purchase the Holders Stock regardless of whether Terremark and the Company elect to effect the Merger. Without limiting the foregoing, no waiver by Terremark of any condition precedent to Terremark's obligation to effect the Merger shall constitute or be deemed a waiver of the same condition by the Vistagreen Group. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1. Representations and Warranties of the Company. The Company hereby represents and warrants to the Vistagreen Group as follows: (a) Due Organization, Good Standing and Corporate Power. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and each such corporation has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except in such jurisdictions where the failure to be so qualified or licensed and in good standing would not have a Material Adverse Effect on the Company. For the purposes of this Agreement, "Material Adverse Effect" on any Person means a material adverse effect on the business, properties, assets, liabilities, operations, results of operations, condition (financial or otherwise) or prospects of the Person 2 6 and its Subsidiaries taken as a whole (i) except to the extent resulting from (A) any change in general United States or global economic conditions or general economic conditions in industries in which the Person competes, or (B) the announcement of the transaction contemplated herein or any action required to be taken pursuant to the terms hereof, and (ii) except that the term Material Adverse Effect shall not include, with respect to the Company (A) any decreases in the Company's stock price in and of itself or (B) any deterioration in the Company's financial condition which is a direct and proximate result of its agreements with Hebei United Telecommunication Equipment Co. The term "Subsidiary," as used in this Agreement, refers to any Person in which the Company owns any equity interest and shall include all joint ventures. (b) Authorization and Validity of Agreement. The Company has full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by the Company, and the consummation by it of the transactions contemplated hereby, have been duly authorized and approved by its Board of Directors and no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. (c) Capitalization. (i) The authorized capital stock of the Company consists of 100,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, $0.001 par value (the "Preferred Stock"). As of the close of business on November 22, 1999, (1) 36,271,689 shares of Common Stock are issued and outstanding. Set forth on Schedule 2.2(c)(i) are (1) the number of shares of Common Stock reserved for issuance pursuant to outstanding Options granted under the Stock Incentive Plans, (2) the number of such shares which have been issued under such Plans, (3) the number of shares of Series G Preferred Stock issued and outstanding, and (4) the number of warrants to purchase the indicated number of shares of Common Stock. No shares of Common Stock are held in the Company's treasury. The Series G Preferred Stock converts at the option of the holder into 1,688,022 shares of Common Stock, which number of shares of Common Stock have been authorized and reserved for issuance by the Company. All issued and outstanding shares of capital stock of the Company have been validly issued and are fully paid and nonassessable, and are not subject to, nor were they issued in violation of, any preemptive rights. Except as set forth in this Section 2.1(c) or on Schedule 2.1(c) attached hereto, (x) there are no shares of capital stock of the Company authorized, issued or outstanding (except for shares subsequently issued pursuant to existing options, warrants and other rights described in Section 2.1(c)) and (y) there are not, as of the date hereof, and at the Effective Time there will not be, any outstanding or authorized options, warrants, rights, subscriptions, claims of any character, agreements, obligations, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to Common Stock or any other shares of capital stock of the Company, pursuant to which the Company is or may become obligated to issue shares of Common Stock, any other shares of its capital stock or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the capital stock of the Company. The Company will authorize and reserve and hereby covenants that it will continue to reserve, free of any preemptive rights or encumbrances, a sufficient number of its authorized but previously unissued shares of Common Stock to satisfy the purchase rights of the Vistagreen Group hereunder. The Holders Stock which is being purchased by the Vistagreen Group hereunder, when issued, sold and delivered in accordance with the terms hereof, will be duly and validly issued, fully paid and non-assessable and will be issued in compliance with all applicable federal and state securities laws. (ii) Schedule 2.1(c)(ii) lists all of the Company's Subsidiaries (as defined in Section 2.1(a) hereof). All of the outstanding shares of capital stock of each of the Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to, nor were they issued in violation of, any preemptive rights, and are owned, of record and beneficially, by the Company, except as otherwise set forth on Schedule 2.1(c)(ii), free and clear of all liens, encumbrances, options or claims whatsoever. No shares of capital stock of any of the Company's Subsidiaries are reserved for issuance and there are no outstanding or authorized options, warrants, rights, subscriptions, claims of any character, agreements, obligations, convertible or exchangeable securities, or other commitments, contingent or otherwise, relating to the capital stock of any Subsidiary of the Company, pursuant to which such Subsidiary is or may become obligated to issue any shares of capital stock of such Subsidiary or any securities convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of such Subsidiary. Except for the Subsidiaries listed on Schedule 2.1(c)(ii), the Company does not own, directly or indirectly, any capital stock or other equity interest in any Person or have any direct or indirect equity or ownership interest in any Person and, except as set forth in Schedule 2.1(c)(ii), neither the Company nor any of its Subsidiaries is subject to any obligation or requirement to provide funds for or to make any investment (in the form of a loan, capital contribution or otherwise) to or 3 7 in any Person. Schedule 2.1(c)(ii), sets forth the equity interests of each such Subsidiary owned by the Company. (d) Consents and Approvals; No Violations. Assuming (i) compliance with any applicable requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) compliance with any requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act") and any requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") relating to the Proxy Statement and registration of the Holders Stock to be issued to the Vistagreen Group are met, (iii) the filing of the Certificate of Merger and other appropriate merger documents, if any, as required by DGCL, and (iv) approval of the Merger by a majority of the holders of Common Stock, is received, the execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby will not: (1) violate any provision of the Certificate of Incorporation or By-Laws of the Company or any of its Subsidiaries; (2) violate any statute, ordinance, rule, regulation, order or decree of any court or of any governmental or regulatory body, agency or authority applicable to the Company or any of its Subsidiaries or by which any of their respective properties or assets may be bound; (3) require any filing with, or permit, consent or approval of, or the giving of any notice to, any governmental or regulatory body, agency or authority; or (4) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, payment or acceleration) under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, franchise, permit, agreement, lease, franchise agreement or other instrument or obligation to which the Company or any of its Subsidiaries is a party, or by which it or any of their respective properties or assets may be bound, excluding from the foregoing clauses (2), (3) and (4) filings, notices, permits, consents and approvals the absence of which, and violations, breaches, defaults, conflicts and liens which, in the aggregate, would not have a Material Adverse Effect on the Company. (e) Company Reports and Financial Statements. Since March 31, 1997, the Company has filed all forms, reports and documents with the Securities and Exchange Commission (the "Commission") required to be filed by it pursuant to the federal securities laws and the Commission rules and regulations thereunder, and, except to the extent revised or superseded by a subsequent filing filed with the Commission prior to the date hereof, all forms, reports and documents filed with the Commission have complied in all material respects with all applicable requirements of the federal securities laws and the Commission rules and regulations promulgated thereunder. The Company has heretofore filed all forms, reports, registration statements and other filings required to be filed by the Company with the Commission since March 31, 1997 (such forms, reports, registration statements and other filings, together with any amendments thereto, are sometimes collectively referred to as the "Commission Filings"). As of their respective dates, except to the extent revised or superseded by a subsequent filing filed with the Commission prior to the date hereof, the Commission Filings did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the (i) consolidated balance sheets as of the end of the fiscal years ended March 31, 1997, 1998 and 1999 and as of the end of the fiscal quarters ended June 30, September 30, and December 31 of each such year, and (ii) the consolidated statements of operations, consolidated statements of stockholders' equity and consolidated statements of changes in financial position for the fiscal years ended March 31, 1997, 1998 and 1999 and for each of the fiscal quarters ended June 30, September 30 and December 31 of each such year, as included in the Commission Filings, were all prepared in accordance with generally accepted accounting principles (as in effect from time to time) applied on a consistent basis (except as may be indicated therein or in the notes or schedules thereto) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the results of their operations and changes in financial position for the periods then ended (subject to normal year-end adjustments and the absence of notes in the case of any unaudited interim financial statements, none of which individually or in the aggregate had or could have a Material Adverse Effect). (f) Absence of Certain Changes. Except as previously disclosed in the Commission Filings, the Company and its Subsidiaries have (i) conducted their respective businesses in the ordinary course, consistent with past practice, and (ii) since March 31, 1999, there has not been: (i) any event, occurrence or development which, individually or in the aggregate, would have a Material Adverse Effect on the Company; (ii) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company, or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of their capital stock or any securities convertible into their capital stock; 4 8 (iii) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; (iv) any material transaction or commitment made, or any contract, agreement or settlement entered into, by (or judgment, order or decree affecting) the Company or any of its Subsidiaries relating to its assets or business (including the acquisition or disposition of any material amount of assets) or any relinquishment by the Company or any of its Subsidiaries of any contract or other right, in either case, material to the Company and its Subsidiaries, taken as a whole, other than transactions, commitments, contracts, agreements or settlements (including without limitation settlements of litigation and tax proceedings) in the ordinary course of business consistent with past practice and those contemplated by this Agreement; (v) any change in any method of accounting or accounting practice by the Company or any of its Subsidiaries, except for any such change which is not material or which is required by reason of a concurrent change in GAAP; (vi) any (1) grant of any severance or termination pay to (or amendment to any such existing arrangement with) any director, officer or employee of the Company or any of its Subsidiaries, (2) entering into of any employment, deferred compensation, supplemental retirement or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its Subsidiaries, (3) increase in, or accelerated vesting and/or payment of, benefits under any existing severance or termination pay policies or employment agreements or (4) increase in or enhancement of any rights or features related to compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its Subsidiaries, in each case, other than in the ordinary course of business consistent with past practice or as permitted by this Agreement; or (vii) any material Tax election made or changed, any material audit settled or any material amended Tax Return filed. (g) Title to Properties; Encumbrances. The Company and each of its Subsidiaries has good, valid and marketable title to (i) all its material tangible properties and assets (real and personal), including, without limitation, all the properties and assets reflected in the consolidated balance sheet as of September 30, 1999 except as indicated in the notes thereto and except for properties and assets reflected in the consolidated balance sheet as of September 30, 1999 which have been sold or otherwise disposed of in the ordinary course of business, and (ii) all the tangible properties and assets purchased by the Company and any of its Subsidiaries since September 30, 1999 except for such properties and assets which have been sold or otherwise disposed of in the ordinary course of business; in each case subject to no encumbrance, lien, charge or other restriction of any kind or character, except for (1) liens reflected in the consolidated balance sheet as of September 30, 1999, (2) liens consisting of zoning or planning restrictions, easements, permits and other restrictions or limitations on the use of real property or irregularities in title thereto which do not materially detract from the value of, or impair the use of, such property by the Company or any of its Subsidiaries in the operation of its respective business, (3) liens for current taxes, assessments or governmental charges or levies on property not yet due and delinquent and (4) liens created in connection with the loan from Terremark to the Company. (h) Compliance with Laws; Permits. The Company and its Subsidiaries are in material compliance with all applicable laws, regulations, orders, judgments and decrees except where the failure to so comply would not have a Material Adverse Effect on the Company. The Company has not received any notice alleging non-compliance within the last two years. Each member of the Company Group (a) has all permits, approvals and other authorizations ("Permits") necessary for the conduct and operation of its businesses as currently conducted and (b) uses its assets in compliance with the terms of such Permits, except for any Permits not obtained or any noncompliance which would not, individually or in the aggregate, have a Material Adverse Effect. (i) Litigation. Except as disclosed in the Commission Filings, there is no and, in the past two years there has been no, action, suit, proceeding at law or in equity, or any arbitration or any administrative or other proceeding by or before (or to the Company's knowledge any investigation by) any governmental or other instrumentality or agency, pending, or, to the Company's knowledge, threatened, against or affecting the Company or any of its Subsidiaries, or any of their properties or rights which could have a Material Adverse Effect on the Company or prevent or delay the consummation of the Merger. There are no such suits, actions, claims, proceedings or investigations pending or, to the Company's knowledge, threatened, seeking to prevent or challenging the transactions contemplated by this Agreement. Except as disclosed in the Commission Filings, neither the Company nor any of its Subsidiaries is subject to any judgment, order or decree entered in any lawsuit or proceeding which could have a Material Adverse Effect on the Company or on the ability of the Company or any Subsidiary to conduct its business as presently conducted. For the purposes of this Agreement, the term "knowledge" shall mean actual knowledge. (j) Government Authorization. The execution, delivery and 5 9 performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency, official or authority other than (i) the filing of a certificate of merger in connection with the Merger in accordance with Delaware Law and Florida law, (ii) compliance with any applicable requirements of the HSR Act, (iii) compliance with any applicable requirements of Council Regulation No. 4064/89 of the European Community, as amended (the "EC Merger Regulation"), (iv) compliance with any other applicable requirements of foreign anti-trust or investment laws, (v) compliance with any applicable environmental transfer statutes, (vi) compliance with any applicable requirements of the Exchange Act, (vii) compliance with any applicable requirements of the Securities Act, or (viii) other actions or filings which if not taken or made would not, individually or in the aggregate, have a Material Adverse Effect on the Company or prevent or materially delay the Company's consummation of the Merger. (k) Insurance. The Company has made available to the Vistagreen Group a schedule of insurance and policies currently maintained by the Company and its Subsidiaries. Furthermore (a) neither the Company nor any of the Company's Subsidiaries has received any notice of cancellation or non-renewal of any such policy or arrangement nor is the termination of any such policies or arrangements threatened, (b) there is no claim pending under any of such policies or arrangements as to which coverage has been questioned, denied or disputed by the underwriters of such policies or arrangements, (c) neither the Company nor any of the Company's Subsidiaries has received any notice from any of its insurance carriers that any insurance premiums will be increased in the future or that any insurance coverage presently provided for will not be available to the Company or any of the Company's Subsidiaries in the future on substantially the same terms as now in effect and (d) none of such policies or arrangements provides for any retrospective premium adjustment, experienced-based liability or loss sharing arrangement affecting the Company or any of the Company's Subsidiaries. (l) Casualties. Neither the Company nor any of the Company's Subsidiaries has been affected in any way as a result of flood, fire, explosion or other casualty (whether or not material and whether or not covered by insurance). The Company is not aware of any circumstance which is likely to cause it to suffer any material adverse change in its business, operations or prospects. (m) Propriety of Past Payments. (i) No unrecorded fund or asset of the Company or any of the Company's Subsidiaries has been established for any purpose, (ii) no accumulation or use of corporate funds of the Company or any of the Company's Subsidiaries has been made without being property accounted for in the books and records of the Company or any of the Company's Subsidiaries, (iii) no payment has been made by or on behalf of the Company or any of the Company's Subsidiaries with the understanding that any part of such payment is to be used for any purpose other than that described in the documents supporting such payment and (iv) none of the Company, any of the Company's Subsidiaries, any director, officer, employee or agent of the Company of any of the Company's Subsidiaries has, directly or indirectly, made any illegal contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any Person, private or public, regardless of form, whether in money, property or services, (A) to obtain favorable treatment for any stockholder, the Company, any of the Company's Subsidiaries or any affiliate of the Company in securing business, (B) to pay for favorable treatment for business secured for any stockholder, the Company, any of the Company's Subsidiaries or any affiliate of the Company, (C) to obtain special concessions, or for special concessions already obtained, for or in respect of any stockholder, the Company or any of the Company's Subsidiaries or any affiliate of the Company or (iv) otherwise for the benefit of any stockholder, the Company or any of the Company's Subsidiaries or any affiliate of the Company in violation of any federal, state, local, municipal, foreign, international, multinational or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty (including existing site plan approvals, zoning or subdivision regulations or urban redevelopment plans relating to Real Property). Neither the Company nor any of the Company's Subsidiaries nor any current directly, officer, agent, employee or other Person acting on behalf of the Company or any of the Company's Subsidiaries, has accepted or received any unlawful contribution, payment, gift, kickback, expenditure or other item of value. (n) Employment Relations and Agreements. (i) Each of the Company and its Subsidiaries is in substantial compliance with all foreign, federal, state or other applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours, and has not and is not engaged in any unfair labor practice; (ii) no unfair labor practice complaint against the Company or any of its Subsidiaries is pending before the National Labor Relations Board; (iii) there is no labor strike, dispute, slowdown or stoppage actually pending or threatened against or involving the Company or any of its Subsidiaries; (iv) no representation question exists respecting the employees of the Company or any of its Subsidiaries; (v) no grievance which might have a Material Adverse Effect on the Company and its Subsidiaries or the conduct of their respective businesses exists, no arbitration proceeding arising out of or under any collective bargaining agreement is pending and no claim therefor has been asserted; (vi) no collective bargaining agreement is currently being negotiated by the Company or any of its Subsidiaries; and (vii) neither the Company nor any of its Subsidiaries has experienced any 6 10 material labor difficulty during the last three years. There has not been, and to the Company's knowledge, there will not be, any change in relations with employees of the Company or any of its Subsidiaries as a result of the transactions contemplated by this Agreement which could have a Material Adverse Effect on the Company. Except as disclosed in Schedule 2.2(n) attached hereto, there exist no employment, consulting, severance or indemnification agreements between the Company and any director, officer or employee of the Company or any agreement that would give any Person the right to receive any payment from the Company as a result of the Merger Agreement Closing. (o) Client Relations. There has not been, and to the Company's knowledge, there will not be, any change in relations with franchisees, customers or clients of the Company or any of its Subsidiaries as a result of the transactions contemplated by this Agreement which could have a Material Adverse Effect on the Company. (p) Sufficiency of Assets. The rights, properties and other assets presently owned, leased or licensed by the Company or its Subsidiaries include all such rights, properties and other assets necessary to permit the Company and its Subsidiaries to conduct their respective businesses in all material respects in the same manner as such businesses have been conducted prior to the date hereof. (q) Contracts and Commitments. Except as provided in Schedule 2.1(q): (i) No purchase contracts or commitments of the Company or any of its Subsidiaries are in excess of the normal, ordinary and usual requirements of business or at any excessive price. (ii) Neither the Company nor any Subsidiary has any outstanding contracts with Shareholders, directors, officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are in excess of the normal, ordinary and usual requirements of business or at any excessive price. (iii) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business anywhere in the world. (iv) Neither the Company nor any of its Subsidiaries has outstanding any agreement to acquire any debt obligations of others. (r) Disclosure Documents. Neither the proxy statement of the Company (the "Company Proxy Statement") nor the Registration Statement on Form S-4 (the "Form S-4"), each to be filed with the Commission in connection with the Merger, nor any amendment or supplement thereto, will, at the date the Company Proxy Statement or any such amendment or supplement is first mailed to stockholders of the Company or at the time such stockholders vote on the adoption and approval of this Agreement and the transactions contemplated hereby, with respect to the Company Proxy Statement, or the date the Form S-4 or any amendment thereto is filed with the Commission, with respect to the Form S-4, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company Proxy Statement and the Form S-4 will, when filed, each comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, no representation or warranty is made by the Company in this Section 2.1(u) with respect to statements made or incorporated by reference therein based on information supplied by Terremark or the Vistagreen Group for inclusion or incorporation by reference in the Company Proxy Statement or the Form S-4, which shall be deemed to include information by any third party with respect to any of the assets directly or indirectly acquired by or furnished to Terremark or the Vistagreen Group after the date hereof. (s) Full Disclosure. The Company has not failed to disclose to the Vistagreen Group any facts material to the business, results of operations, assets, liabilities, financial condition or prospects of the Company or its Subsidiaries. No representation or warranty by the Company contained in this Agreement and no statement contained in any document (including financial statements and the Schedules hereto), certificate, or other writing furnished or to be furnished by the Company to Terremark or any of its representatives pursuant to the provisions hereof or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading. 2.2. Representations and Warranties of the Vistagreen Group. The Vistagreen Group represent and warrant to the Company as follows: (a) Accredited Investors. The Vistagreen Group and/or each constituent thereof, is an Accredited Investor as defined in Rule 501 of Regulation D promulgated under the Securities Act and has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision. 7 11 (b) Investment Intent. The Vistagreen Group, and each constituent thereof, represents and warrants to the Company that it is purchasing the Holders Stock for investment purposes and not with a view to distribution thereof and agrees that it shall not make a sale, transfer or other disposition of the Holders Stock in violation of any applicable securities law. ARTICLE III REGISTRATION RIGHTS 3.1. Shelf Registration. If the Company shall receive from the holders in the aggregate of not less than twenty-five percent (25%) of the Registrable Securities (collectively, an "Initiating Holder"), at any time later than nine months after the Effective Date, a written request that the Company effect a registration of the Registrable Securities (a "Registration Requirement"), the Company will: (a) Within thirty (30) days of receipt of a Registration Request, the Company shall file a "shelf" registration statement on Form S-3, or other applicable form that is mutually satisfactory, pursuant to Rule 415 under the Securities Act (the "Shelf Registration") with respect to that portion of the Registrable Securities (which may be all but shall not be less than 25% of the Registrable Securities) included in the Registration Request. The Company agrees that the provisions of this Section 3.1(a) create a "demand" registration right for the Holders with respect to the Registrable Securities. The Company shall, subject to Section 3.1(e) hereof, use its reasonable best efforts to cause the Shelf Registration to become effective as soon as practicable after the filing thereof and shall use its reasonable best efforts to keep the Shelf Registration continuously effective from the date such Shelf Registration is effective until the date on which all Registrable Securities may be sold pursuant to Rule 144(k). (b) Subject to Section 3.2(f) hereof, the Company shall supplement or amend the Shelf Registration, (A) as required by the registration form utilized by the Company or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, and (B) to include in such Shelf Registration any additional unregistered securities that become Registrable Securities by operation of the definition thereof, unless such securities are otherwise registered under the Securities Act or may be sold pursuant to an exemption therefrom or (C) if and to the extent reasonably requested by the Holders of the Registrable Securities, provided however, that such request and any required supplement or amendment shall relate only to material information about such Holder and included in or omitted from such Shelf Registration. The Company shall furnish to the Holders of the Registrable Securities to which the Shelf Registration relates copies of any such supplement or amendment no less than five business days in advance of its use and/or filing with the Commission to allow the Holders to comment thereon. The failure of the Holders to provide written comments under such period shall be deemed agreement with such supplement or amendment. (c) The Shelf Registration may include other Securities of the Company which are held by Persons who, by virtue of agreements with the Company, are entitled to include their Securities in any such registration ("Other Stockholders"). 3.2. Expenses of Registration. All Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to this Article III (including all Registration Expenses incurred in connection with the Shelf Registration and any supplements or amendments thereto, whether or not it becomes effective, and whether all, none or some of the Registrable Securities are sold pursuant to the Shelf Registration) shall be borne by the Company (provided, however, that the Holders shall bear the expenses of advisors, including investment bankers, retained by them, except that the Company shall pay the expenses of one counsel for the Holders in an amount not to exceed $10,000), and all Selling Expenses shall be borne by the Holders of the securities so registered pro rata on the basis of the number of their shares so registered. 3.3. Registration Procedures. In the case of the registration effected by the Company pursuant to this Article III, the Company will advise the Holders in writing as to the filing of the Shelf Registration and the effectiveness thereof. The Company will: (a) furnish to each Holder, and to any underwriter designated by the Holder a reasonable number of copies of any registration statement (including all exhibits) and any prospectus forming a part thereof and any amendments and supplements thereto (including all documents incorporated or deemed incorporated by reference therein) prior to the effectiveness of such registration statement and any prospectus filed under Rule 424 under the Securities Act, which documents, other than documents incorporated or deemed incorporated by reference, will be subject to the review of the Holders and any such underwriter for a period of at least five business days, and the Company shall not file any such registration statement or such prospectus or any amendment or supplement to such registration statement or prospectus to which any Holder or any such underwriter shall reasonably object in writing, specifying in detail the nature of such objection, within five business days after the receipt thereof; a Holder shall be deemed to have reasonably objected to such filing only if the 8 12 registration statement, amendment, prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission; (b) furnish to each Holder and to any underwriter designated by the Holder a reasonable number of conformed copies of the applicable registration statement and of each amendment and supplement thereto (in each case including all exhibits) and such number of copies of the prospectus forming a part of such registration statement and prospectus filed under Rule 424 under the Securities Act, and such other documents, including without limitation documents incorporated or deemed to be incorporated by reference prior to the effectiveness of such registration, as each of the Holders or any such underwriter from time to time may reasonably request; (c) to the extent practicable, promptly prior to the filing of any document that is to be incorporated by reference into any registration statement or prospectus forming a part thereof subsequent to the effectiveness thereof, and in any event no later than the date such document is filed with the Commission, provide copies of such document to the Holders and to any underwriter, if requested, and make representatives of the Company available for discussion of such document and other customary due diligence matters; (d) make available at reasonable times for inspection by the Holders, any underwriter and any attorney or accountant retained by the Holders or any such underwriter all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all information reasonably requested by the Holders and any such underwriters, attorneys or accountants in connection with such registration subsequent to the filing of the applicable registration statement and prior to the effectiveness of the applicable registration statement; (e) use its reasonable best efforts (x) to register or qualify all Registrable Securities and other securities covered by such registration under such other securities or blue sky laws of such States of the United States of America where an exemption is not available and as the sellers of Registrable Securities covered by such registration shall reasonably request, (y) to keep such registration or qualification in effect for so long as the applicable registration statement remains in effect, and (z) to take any other action which may be reasonably necessary or advisable to enable such sellers to consummate the disposition in the United States of the securities to be sold by such sellers, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where it is not so qualified, or to subject itself to taxation in any such jurisdiction, or to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act or applicable rules or regulations thereunder; (f) promptly notify each Holder of Registrable Securities covered by a registration statement (A) upon discovery that, or upon the happening of any event as a result of which, the prospectus forming a part of such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (B) of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of proceedings for that purpose, (C) of any request by the Commission for (1) amendments to such registration statement or any document incorporated or deemed to be incorporated by reference in any such registration statement, (2) supplements to the prospectus forming a part of such registration statement or (3) additional information, or (D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction in which the Company has agreed hereunder to qualify such securities for sale or the initiation of any proceeding for such purpose, and at the request of any such Holder promptly prepare and furnish to it a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (g) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any such registration, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which the Company has agreed hereunder to qualify such securities for sale; (h) if requested by any Initiating Holder, or any underwriter, promptly incorporate in such registration statement or prospectus, pursuant to a supplement or post effective amendment if necessary, such information as the Initiating Holder and any underwriter may reasonably request to have included therein relating to the "plan of distribution" of the Registrable Securities, the principal amount or number of shares of Registrable Securities being sold to such underwriter, the purchase price being paid 9 13 therefor and any other terms of the offering of the Registrable Securities to be sold in such offering and make all required filings of any such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such prospectus supplement or post effective amendment; (i) provide promptly to the Holders upon request any document filed by the Company with the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act; and (j) use its reasonable best efforts to cause all Registrable Securities included in any registration pursuant hereto to be listed on each securities exchange on which securities of the same class are then listed, or, if not then listed on any securities exchange, to be eligible for trading in any over-the-counter market or trading system in which securities of the same class are then traded. 3.4. Indemnification. (a) The Company will indemnify each of the Holders, as applicable, each of its officers, directors, members and partners, and each person controlling each of the Holders, with respect to each registration which has been effected pursuant to this Article III, and each underwriter, if any, and each person who controls any underwriter, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse each of the Holders, each such underwriter and each person who controls any such underwriter, each of its officers, directors, members and partners, and each person controlling each of the Holders for any legal and any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by the Holders and stated to be specifically for use therein. It is agreed that the indemnity agreement contained in this Section 3.4(a) shall not apply to any amounts paid in settlement of any such claims, loss, damage, liability or expense if such settlement is effected without the consent of the Company (which consent has not been unreasonably withheld). (b) Each of the Holders will, if Registrable Securities held by it are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Company, each of its directors and officers and each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter, each Other Stockholder and each of their officers, directors, members and partners, and each person controlling such Other Stockholder against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document made by such Holder, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements by such Holder therein not misleading, and will reimburse the Company and such Other Stockholders, directors, officers, partners, members, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by such Holder and stated to be specifically for use therein; provided, however, that the obligations of each of the Holders hereunder and under clause (f) below shall be limited to an amount equal to the net proceeds to such Holder of securities sold as contemplated herein. It is agreed that the indemnity agreement contained in this Section 3.4(b) shall not apply to any amount paid in settlement of any such claim, loss, damage, liability or expense if such settlement is effected without the consent of the majority of the Holders (which consent will not be unreasonably withheld). (c) Each party entitled to indemnification under this Section (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld) and the Indemnified Party may participate in such defense at such party's 10 14 expense (unless the Indemnified Party shall have reasonably concluded, based upon an opinion of counsel, that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in such action, in which case the fees and expenses of one such counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party), and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 3 unless the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party (which consent shall not be unreasonably withheld or delayed), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom. (d) If the indemnification provided for in this Section 3.4 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue (or alleged untrue) statement of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with any underwritten public offering contemplated by this Agreement are in conflict with the foregoing provisions, the provisions in such underwriting agreement shall be controlling. (f) The foregoing indemnity agreement of the Company and Holders is subject to the condition that, insofar as they relate to any loss, claim, liability or damage made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the Commission at the time the registration statement in question becomes effective or the amended prospectus filed with the Commission pursuant to Commission Rule 424 (the "Final Prospectus"), such indemnity or contribution agreement shall not inure to the benefit of any underwriter or Holder (but only if such Holder was required to deliver such Final Prospectus) if a copy of the Final Prospectus was furnished to the underwriter and was not furnished to the person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act. 3.5. Information by the Holders. Each of the Holders holding securities included in any registration shall furnish to the Company such information regarding such Holder and the distribution proposed by such Holder as the Company may reasonably request in writing and as shall be reasonably required in connection with any registration, qualification or compliance referred to in this Article III. 3.6. Holdback Agreement; Postponement. Notwithstanding the provisions of this Article III, if the Board of Directors of the Company determines in good faith that it is in the best interests of the Company (A) not to disclose the existence of facts surrounding any proposed or pending acquisition, disposition, strategic alliance or financing transaction involving the Company or (B) for any purpose relating to: (aa) a registration of equity securities of the Company, (bb) a registration of convertible securities of the Company (including any underlying equity securities), (cc) a registration of any securities sold pursuant to a Rule 144A transaction, or (dd) a registration of any securities relating to a transaction described in Rule 145(a), to suspend the registration rights set forth herein, the Company may, by notice to the Holders in accordance with the notice provisions hereof, suspend the rights of the Holders to make sales pursuant to the Shelf Registration for such a period of time as the Board of Directors may reasonably determine, provided however, that such suspension shall be terminated by the Company as soon as is reasonably practicable. 3.7. Assignment. The registration rights set forth in Article III hereof may be assigned, in whole or in part, to any transferee of Registrable Securities (who shall be considered thereafter to be a Holder (provided that any transferee who is not an affiliate of Holder shall be a 11 15 Holder only with respect to such Registrable Securities so acquired and any stock of the Company issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, such Registrable Securities) and shall be bound by all obligations and limitations of this Agreement). 3.8. Remedies. Each Holder of Registrable Securities, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. 3.9. Lockup. Notwithstanding the date of effectiveness of the Registration Statement filed pursuant to Section 3.1 hereof, the Holders agree that, except as provided below, no sale, offer to sell, pledge or other disposition of any interest in the Holders Stock shall be made by any Holder prior to the expiration of one (1) year after the Effective Time; provided, however, that nothing herein contained shall preclude (i) open market sales pursuant to Rule 144, or (ii) sales by any member of the Vistagreen Group to another member of such Group or any family member or Affiliate of any member of such Group or to Terremark or any Affiliate of Terremark. ARTICLE IV (a) ADDITIONAL AGREEMENTS 4.1. United States Real Property Interests . The Company covenants and agrees that for so long as the Vistagreen Group holds, in the aggregate, Holders Stock acquired pursuant to this Agreement representing at least 1% of the outstanding shares of Common Stock of the Company, the Company shall not be or become a United States Real Property Holding Corporation as defined in Section 897(c)(2) of the Code nor shall the Holders Stock acquired pursuant to this Agreement be or become a United States Real Property Interest as defined in Section 897(c)(1)(A)(ii) of the Code. In addition, as of each Determination Date (as defined in Treasury Regulation Section 1.897-2(c)), including particularly a date of disposition, the Company shall provide to each member of the Vistagreen Group a statement complying with Treasury Regulation Section 1.897-2(g)(1)(ii) and shall also comply, on a timely basis, with the notice requirements of Treasury Regulation Section 1.897-2(h) including without limitation, timely notice to the Internal Revenue Service as provided in that Treasury Regulation, with a copy to each member of the Vistagreen Group, together with other Supporting Documents (as hereinafter defined), but dated as of the determination date. Any notice conforming with or under Treasury Regulation Section 1.897-2(h) need address the status of the Company as a United States Real Property Holding Corporation and the status of the Company Shares as a United States Real Property Interest only from a date that is no earlier than the day that is thirty days prior to the Effective Time. These covenants shall in all respects survive the Closing of this Agreement. ARTICLE V CONDITIONS PRECEDENT 5.1. Conditions Precedent to Obligations of Vistagreen Group. The obligations of the Vistagreen Group to effect the transactions contemplated by this Agreement are subject to the satisfaction or waiver at or prior to the Closing, of each of the following conditions: (a) Closing of Merger Agreement. The Merger Agreement Closing shall have been effectuated; (b) Accuracy of Representations and Warranties. All representations and warranties of the Company contained herein shall be true and correct in all material respects as of the date hereof and at and as of the Closing, with the same force and effect as though made on and as of the Closing Date (except as to any such representation and warranty which relates to a specific date other than the date of signing this Agreement, which shall be true and correct as of such specific date); (c) Sale of Property. The Property or the Partnership Interests shall have been sold to a party which is not related to any of the parties to this Agreement prior to the Closing; (d) United States Real Property Holding Company. Neither the Surviving Corporation nor the Company, as of the Effective Time and for thirty days prior thereto, is or has been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code), and the Holders Stock to be acquired by the Holders, at the Effective Time, does not constitute a United States real property interest (as defined in Section 897(c)(1)(A)(ii) of the Code) ("USRPHC Condition Precedent"). To assure that the USRPHC Condition Precedent has been met the following shall be delivered to the Holders at Closing: (i) an opinion of counsel to the Surviving Corporation on a "will" basis (which opinion shall be dated the Closing Date and may be based on representations of fact made under penalties of perjury by 12 16 responsible officers of the Company and/or responsible officers of Terremark as defined under Treas. Reg. ss. 1.897-2(h)) and confirming the satisfaction of the USRPHC Condition Precedent (the form and content of which and the counsel rendering the opinion to be reasonably satisfactory to the Holders and their counsel); (ii) a statement under Treas. Reg.ss. 1.897-2(g)(1)(ii) executed by a responsible corporate officer of the Surviving Corporation to the Holders conforming with Treas. Reg. Section 1.897-2(h) to the effect that the Surviving Corporation is not a United States real property holding corporation as defined above and the Holders Stock being delivered to the Holders pursuant to the Merger Agreement is not a United States real property interest (as defined above) (in each case as of the Effective Time), together with a Notice to the U.S. Internal Revenue Service concerning the issuance of same which shall be forwarded to the IRS by legally authorized means on the Closing date; and (iii) a pro forma balance sheet of the Surviving Corporation dated as of the Closing date (or applicable determination date if other than the Closing Date), certified, under penalties of perjury, by a responsible officer as that term is defined under Treasury Regulation ss. 1.897-2(h), demonstrating that the USRPHC Condition Precedent has been satisfied (all of the foregoing documents referred to in clauses (i), (ii) and (iii) being hereinafter referred to as the "Supporting Documents"). (e) Legal Opinion. Holders shall have received a legal opinion from counsel to the Surviving Corporation in form and substance (and such counsel to be) reasonably satisfactory to the Holders to the effect that the Holders Stock which is being purchased by the Holders hereunder, when issued, sold and delivered in accordance with the terms hereof, will, assuming that the representations in Section 2.2 are correct, be duly and validly issued, fully paid and non-assessable and will be issued in compliance with all applicable federal and state securities laws; (f) Approval of Company's Stockholders. The Merger, the Merger Agreement and this Agreement shall have been approved and adopted by the requisite vote or consent of the stockholders of the Company in accordance with applicable law, the provisions of the Company's Certificate of Incorporation and By-Laws, and the requirements of the AMEX; (g) Registration Statement. The Form S-4 shall have become effective in accordance with the provisions of the Securities Act. No stop order suspending the effectiveness of the Form S-4 shall have been issued by the SEC and no proceedings for that purpose shall have been initiated by the SEC; (h) Litigation. There shall not have been instituted or be pending any suit, action or proceeding by any governmental entity as a result of this Agreement or any of the transactions contemplated hereby which questions the validity or legality of the transactions contemplated by the Merger Agreement or this Agreement; (i) Injunction. No injunction or other order shall have been issued by any court or by any governmental or regulatory agency, body or authority which is then in effect and has the effect of making the Merger or the transactions contemplated by this Agreement illegal or otherwise prohibiting the consummation of the Merger or this Agreement; (j) Statutes. No statute, rule, regulation, executive order, decree or order of any kind shall have been enacted, entered, promulgated or enforced by any court or governmental authority which prohibits the consummation of the Merger or this Agreement; (k) AMEX Listing. The shares of Post Merger Common Stock to be issued pursuant to the Merger and the Holders Shares shall have been approved for listing on the AMEX, upon final notice of issuance; (l) Performance by Company. The Company shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants and conditions, contained in the Merger Agreement and herein to be performed or complied with by it prior to the Closing, and the Vistagreen Group shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect; (m) Letters of Company Accountants. ------------------------------ (i) The Company shall use reasonable best efforts to cause to be delivered to Purchaser two letters from Deloitte & Touche LLP, one dated no earlier than three business days prior to the date on which the Form S-4 shall become effective and one dated no earlier than three business days prior to the Closing Date, each addressed to the Purchaser, in form reasonably satisfactory to the Purchaser and customary in scope for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. (ii) Terremark shall use reasonable best efforts to cause to be delivered to Purchaser two letters from PricewaterhouseCoopers, one dated no earlier than three business days prior to the date on which the Form S-4 shall become effective and one dated no earlier than three business days prior to the Closing Date, each addressed to the Purchaser, 13 17 in form reasonably satisfactory to the Purchaser and customary in scope for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4; and (n) Employment Agreement. Joseph Wright, Jr. shall have entered into an employment contract in form and substance acceptable to Terremark which shall provide for, among other things, an annual salary of $250,000 and a surrender by him of all options to purchase shares of Common Stock other than 1,000,000 options exercisable at $3.00 per share and the 2,000,000 options exercisable at $0.35 per share, none of which shall be exercised until at least one year after the Effective Time. 5.2. Conditions Precedent to Obligations of the Company. The obligations of the Company to effect the transaction contemplated by this Agreement are subject to the satisfaction or waiver by the Company, at or prior to the Closing, of each of the following conditions: (a) Accuracy of Representations and Warranties. All representations and warranties of the Vistagreen Group contained herein shall be true and correct in all material respects as of the date hereof and at and as of the Closing, with the same force and effect as though made on and as of the Closing Date (except as to any such representation and warranty which relates to a specific date, which shall be true and correct as of such specific date); and (b) Merger Agreement Closing. The Merger Agreement Closing shall have been effectuated. ARTICLE VI TERMINATION AND ABANDONMENT 6.1. Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned, at any time prior to the Closing: (a) by mutual consent of the Board of Directors of the Company and the Vistagreen Group; or (b) by the Board of Directors of Terremark or the Company if the Effective Time shall not have occurred by July 1, 2000 through no fault of the terminating party; (c) by the Vistagreen Group if the Merger Agreement Closing shall not have occurred on or before December 31, 2000; or (d) by either of the parties, if any permanent injunction, order, decree or ruling by any governmental entity or competent jurisdiction preventing the consummation of the Merger, or the transactions contemplated by this Agreement, shall become final and nonappealable; or (e) by the Board of Directors of the Company or Vistagreen Group if there has been a material breach of any representation, warranty, obligation, covenant, agreement or condition set forth in this Agreement on the part of the other party; provided, however, that each of the Company and Vistagreen Group shall have the right to cure any such breach within three days of written notice of any such breach given by the other party; or (f) by Vistagreen Group if there has been a material breach of any representation, warranty, obligation, covenant, agreement or condition set forth in the Merger Agreement on the part of the Company or Terremark; provided, however, that each of the Company and Terremark shall have the right to cure such breach within three days of written notice of any such breach; or (g) by the Board of Directors of the Company or Vistagreen Group if the approval of this Agreement and the Merger Agreement by the required number of holders of the Common Stock shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting (including any adjournment or postponement thereof) of the Company's stockholders or any adjournment thereof; provided, however, that if the failure to obtain such required vote is the result of the failure of the Company to obtain a quorum at its meeting of stockholders, the Company will immediately call an additional meeting if so requested by Vistagreen Group; or (h) by the Board of Directors of the Company or Vistagreen Group if the Board of Directors of the Company shall have withdrawn or modified its approval or recommendation of the Merger of this Agreement in any manner adverse to Terremark or Vistagreen Group; provided, however, that the right to terminate this Agreement shall not be available to a party that has breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure of the Merger to be consummated. 6.2. Effect of Termination. In the event of the termination of this Agreement pursuant to Section 6.1 hereof by Terremark, the Vistagreen Group or the Company, written notice thereof shall promptly be given to the other party specifying the provision hereof pursuant to which such termination is 14 18 made, and this Agreement shall become void and have no effect, and there shall be no liability hereunder on the part of Terremark or the Company, except that Section 7.1 hereof shall survive any termination of this Agreement, and that, promptly upon any such termination, the Representatives shall disburse all funds which then remain in the Escrow Account to the Vistagreen Group in accordance with such instruction as the Vistagreen Group shall deliver to such Representatives. ARTICLE VII MISCELLANEOUS 7.1. Fees and Expenses. (a) All costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. 7.2. Survival of Representations and Warranties. The respective representations and warranties of the Company and the Vistagreen Group contained herein or in any certificates or other documents delivered prior to or at the Closing shall not be deemed waived or otherwise affected by any investigation made by any party. Each and every such representation and warranty shall expire with, and be terminated and extinguished by, the Closing and thereafter neither of the Company nor the Vistagreen Group shall be under any liability whatsoever with respect to any such representation or warranty. 7.3. Extension; Waiver. At any time prior to the Closing, the parties hereto, by action taken by or on behalf of the respective Boards of Directors of the Company or Terremark and by the Vistagreen Group, may (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties contained herein by any other applicable party or in any document, certificate or writing delivered pursuant hereto by any other applicable party or (iii) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. 7.4. Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person or mailed, certified or registered mail with postage prepaid, or sent by telecopier, as follows: (a) if to the Company, to it at: AMTEC, INC. 599 Lexington Avenue, 44th Floor New York, NY 10002 Facsimile Number: (212) 319-9288 Attention: Karin-Joyce Tjon with a copy to: Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, NY 10022 Attention: Edmund C. Duffy, Esq. with additional copies to: Terremark Holdings Inc. c/o Terremark Group, Inc. 2601 S. Bayshore Drive, PH-1B Coconut Grove, FL 33133 Facsimile: (305) 856-8190 Attention: Brian K. Goodkind, Esq. and to: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 Facsimile: (305) 579-0717 Attention: Paul Berkowitz, Esq. (b) if to Vistagreen Group, to it at: c/o Karp & Genauer, P.A. 2 Alhambra Plaza, Suite 1202 Coral Gables, FL 33134 Facsimile: (305) 461-3545 Attention: Joel Karp, Esq. or to such other Person or address as any party shall specify by notice in 15 19 writing to each of the other parties. All such notices, requests, demands, waivers and communications shall be deemed to have been received on the date of delivery unless if mailed, in which case on the third business day after the mailing thereof except for a notice of a change of address, which shall be effective only upon receipt thereof. 7.5. Entire Agreement; Severability. This Agreement and the annex, schedules and other documents referred to herein or delivered pursuant hereto, and the Merger Agreement and the Purchaser Contract and documents contemplated thereby contain the entire understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior agreements and understandings, oral and written, with respect thereto. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect (a) if such provision is enforceable in part, such provision shall be enforced to the maximum extent permissible under applicable law, and (b) the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided, however, that if enforcement of the Agreement without giving effect to an invalid or unenforceable provision would deny either party the benefit of the transaction contemplated hereby, then the Agreement as a whole will terminate. 7.6. Binding Effect; Benefit; Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. 7.7. Amendment and Modification. Subject to applicable law, this Agreement may be amended, modified and supplemented in writing by the parties hereto in any and all respects before the Closing, by action taken by the respective Boards of Directors of Terremark and the Company or by the respective officers authorized by such Boards of Directors and by the Vistagreen Group. 7.8. Further Actions. Each of the parties hereto agrees that, subject to its legal obligations, it will use its best efforts to fulfill all conditions precedent specified herein, to the extent that such conditions are within its control, and to do all things reasonably necessary to consummate the transactions contemplated hereby. 7.9. Interpretation; Headings. Any matter required to be disclosed in any Schedule which was not disclosed therein shall be deemed to have been disclosed in the correct Schedule to the extent such matter was reasonably specifically cross-referenced to another Schedule containing such disclosure. The parties agree that certain agreements and other matters may be listed in a Schedule for informational purposes only, notwithstanding that, because they do not rise to the applicable materiality thresholds or otherwise, they are not required to be listed therein by the terms of this Agreement. In no event shall the listing of any such Contract or the inclusion of any other matter in any Schedule be deemed or interpreted to broaden or otherwise amplify the representations and warranties or covenants contained in this Agreement. Furthermore, the disclosure of any particular item or items of information in any Schedule shall not be taken as an admission that such disclosure is required to be made under the terms of any such representations and warranties (including any admission that any such items establish the required level of materiality). The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. 7.10. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. 7.11. Applicable Law. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws rules thereof. 7.12. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. ARTICLE VIII DEFINITIONS As used in this Agreement, the following terms have the respective meanings set forth below: Affiliates: the Affiliate of a person shall mean a person that 16 20 directly, or indirectly through one or more intermediaries, controls, or is controllable by, or is under common control with such person; Commission: shall mean the Securities and Exchange Commission; Effective Date: shall mean the date on which the Closing of this Agreement occurs; Exchange Act: shall mean the Securities Exchange Act of 1934, as amended; Holder: shall mean any holder of Registrable Securities; Initiating Holder: shall mean any Holder or Holders who in the aggregate are Holders of more than 25% of the then outstanding Registrable Securities; Person: shall mean an individual, partnership, joint stock company, corporation, trust or unincorporated organization, and a government or agency or political subdivision thereof; register, registered and registration: shall mean a registration effected by preparing and filing a registration statement in compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such registration statement; Registrable Securities: shall mean (A) the aggregate number of shares of Common Stock of the Surviving Company issued to the Vistagreen Group or their assignees pursuant to this Agreement, and (B) any securities of the Surviving Company issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares of Surviving Company Post Merger Common Stock referred to in clause (A); provided, that Registrable Securities shall not include (i) securities with respect to which a registration statement with respect to the sale of such securities has become effective under the Securities Act and all such securities have been disposed of in accordance with such registration statement, (ii) such securities as are actually sold pursuant to Rule 144 (or any successor provision thereto) under the Securities Act ("Rule 144"), or (iii) such securities as are acquired by the Surviving Company or any of its subsidiaries; Registration Expenses: shall mean all expenses incurred by the Company in compliance with Section 3 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, fees and expenses of one counsel for all the Holders, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company, which shall be paid in any event by the Company); Security, Securities: shall have the meaning set forth in Section 2(1) of the Securities Act; Securities Act: shall mean the Securities Act of 1933, as amended; and Selling Expenses: shall mean all underwriting discounts and selling commissions applicable to the sale of Registrable Securities and all fees and disbursements of counsel for each of the Holders other than fees and expenses of one counsel for all the Holders. IN WITNESS WHEREOF, each of Vistagreen Holdings (Bahamas) Ltd., and the Company have caused this Agreement to be executed by their respective officers thereunto duly authorized, all as of the date first above written. AMTEC, INC. /s/ Joseph R. Wright, Jr. Chairman & Chief Executive Officer VISTAGREEN HOLDINGS (BAHAMAS), LTD. /s/ Peter B. Evans President 17 21 Terremark Holdings, Inc., a Florida corporation, hereby confirms its agreement to all of the provisions in the above Stock Purchase Agreement, including, without limitation, those contained in Sections 1.1 and 1.2 thereof. TERREMARK HOLDINGS, INC. /s/ Manuel D. Medina Chairman & Chief Executive Officer AMENDMENT TO STOCK PURCHASE AGREEMENT THIS AMENDMENT TO STOCK PURCHASE AGREEMENT is dated as of February 11, 2000 ("Amendment", and is made by and between Paradise Stream (Bahamas) Limited, a Bahamian international business company ("Paradise Stream"), Vistagreen Holdings (Bahamas), Ltd., a Bahamian international business company ("Vistagreen"), Moraine Investments, Inc., a British Virgin Islands company ("Moraine"), (Paradise Stream, Vistagreen and Moraine are collectively the "Purchaser"), and AMTEC, INC., a Delaware corporation ("Company"). WHEREAS, Vistagreen and the Company entered into that certain Stock Purchase Agreement dated as of November 24, 1999 (the "Stock Purchase Agreement"): and Vistagreen has assigned a portion of its rights and interests in the Stock Purchase Agreement to Paradise and Moraine; WHEREAS, Vistagreen, Paradise Stream and Moraine are the holders of such portion of the principal amount of the Note as are set forth in Exhibit "A" attached hereto and, as a result, Vistagreen, Paradise Stream and Moraine are entitled to receive the percentage interests in the Note Proceeds described in Exhibit "A" upon satisfaction of the Note; and WHEREAS, the parties desire to hereby amend the Stock Purchase Agreement, as set forth herein, effective as of the date first set forth above. NOW THEREFORE, for good and valuable consideration, the parties hereto agree as follows (all capitalized terms not herein defined shall have the meaning set forth in the Stock Purchase Agreement): 1. All referenced in the Stock Purchase Agreement to the "Vistagreen Group" shall be deemed to refer to Vistagreen, Paradise Stream and Moraine and, where applicable, in accordance with their respective percentage interests in the Note Proceeds described in Exhibit "A". 2. The fourth "Whereas" clause is hereby amended and restated in its entirety as follows: WHEREAS, in connection with and upon consummation of the sale of the Property, the Note shall be required to be satisfied in full and, subject to certain conditions, all such proceeds so paid to satisfy the Note in full, including any shortfall amount paid by Terremark in the event that the proceeds of the sale of the Property are not sufficient to satisfy the Note in full or a Terremark promissory note for such shortfall should the Vistagreen Group permit so in its sole discretion (the "Note Proceeds"), shall be used to purchase certain shares of the Company as set forth herein. 3. Section 1.2 is hereby amended and restated in its entirety as follows: 1.2 Purchase and Sale of Post-Merger Common Stock. Upon and subject to the Merger Agreement Closing, the Surviving Corporation will sell to the Vistagreen Group and the Vistagreen Group will purchase from the Surviving Corporation such number of shares of duly authorized, validly issued, fully paid and non-assessable Post Merger Common Stock of the Surviving Corporation which represents 35% of the issued and outstanding Post-Merger Common Stock of the Surviving Corporation on a fully diluted basis after giving effect to such issuance ("Holders Stock"). As used herein, any calculation of shares on a "fully diluted basis" shall mean a calculation of share ownership that assumes that all options granted under any incentive or other plan, agreement or arrangement of the Company or the Surviving Corporation have been exercised, that all warrants to purchase securities of the Company or the Surviving Corporation have been exercised, that all warrants to purchase securities of the Company or the Surviving Corporation have been exercised and that all rights to convert any security or other instrument, including, without limitation, Series E and G Preferred Stock of the Company or the Surviving Corporation into Common Stock or Post eager Common Stock have been exercised, and any right or obligation of the Company to discharge its obligation to pay dividends, interest or any other obligation of the Company by the issuance of Common Stock or Post Merger Common Stock shall be deemed to have been paid or discharged by the issuance of such Common Stock or Post Merger Common Stock and all other rights whatsoever to acquire any Common Stock or Post Merger Common Stock have been exercised (including, as to all of the foregoing, any unvested options or warrants or other rights to acquire Common Stock or Post Merger Common Stock have been exercised (including, as to all of the foregoing, any unvested options or warrants or other rights to acquire Common Stock or Post Merger Common Stock that are subject to the passage of time, the payment of money, or any other contingency whatsoever), each such exercise, conversion or issuance to be deemed to have occurred immediately prior to the issuance of the Post Merger Common Stock to the Holders. The total purchase price to be paid by the Vistagreen Group for the Holders Stock shall be an amount equal to the Note Proceeds, together with any and all interest earned thereon after the sale of the Property and before the Merger Agreement Closing. At the Closing, 18 22 the Surviving Corporation shall deliver to the Vistagreen Group original certificates in the aggregate representing the Holders Stock (with stamps or other evidence of payment of all taxes payable in respect of such issuance affixed thereto or accompanying the same), which certificates shall be in such denominations as the Vistagreen Group reasonably request, such request to be delivered to the Company (which shall be deemed notice to the Surviving Corporation) in writing at least three (3) business days prior to the Closing. Notwithstanding anything herein to the contrary, if the Merger Agreement Closing has not occurred on or before December 31, 2000 (time being of the essence of this provision), then the obligation of the Vistagreen Group to purchase the Holders Stock and the Surviving Corporation's right to sell the Holders Stock to the Vistagreen Group shall immediately terminate (without liability to any party) and be of no further force and effect. In such event, on the first business day in January 2001, Terremark and the Holders shall each cause their respective Representatives to disburse the Note Proceeds which then remain in the Escrow Account to the Vistagreen Group in accordance with the Purchase Contract and such instructions as the Vistagreen Group shall deliver to such Representatives. Provided that the Closing hereunder and the Merger Agreement Closing have each taken place by December 31, 2000, the Company agrees that the Surviving Corporation shall file with the SEC, within ten business days after the date of the later of the two closings to occur, a registration statement on Form S-3 (or similar form) registering the sale and disposition of all of the Holders Stock (the "Registration Statement"). 4. The following section is added as a new Section 2.2(c): Investment Intent. The Vistagreen Group represents and warrants that it is purchasing the Post Merger Common Stock issued to it for investment purposes and not with a view to distribution thereof and agrees that it shall not make any sale, transfer or other disposition of its Post Merger Common Stock in violation of any applicable securities law. 5. The following section is added as a new Section 3.1(d): The filing and effectiveness of the Form S-3 referenced in Section 1.2 above shall be deemed to satisfy the demand registration rights set forth in Section 3.1(a) hereof, with the terms and conditions of Sections 3.1 through 3.8 of this Agreement applying to the filing of such Form S-3. 6. Section 3.9 is hereby revised and restated in its entirety to read as follows: 3.9 Lockup. Notwithstanding the date of effectiveness of the Registration Statement filed pursuant to Section 1.2 hereof, the Holders agree that, except as provided below, no sale, offer to sell or other disposition of any interest in the Holders Stock shall be made by any Holder (without the consent of the Surviving Corporation, to be given or withheld in the Surviving Corporation's sole and absolute discretion) prior to the expiration of one (1) year after the Merger Agreement Closing; provided, however, that nothing herein contained shall impair or affect the Holder's rights to sell Holders Stock pursuant to I) open market sales in such amounts and at such times as would be permitted under the volume limitation of Rule 145, as if such rule were applicable, or (ii) sales by any member of the Vistagreen Group to another member of such Group or any family member or Affiliate of any member of such Group or to Terremark or any affiliate of Terremark (a "Permitted Transferee"). Any transfer to such Permitted Transferee may be made pursuant to the Registration Statement so that the Permitted Transferee (to the extent allowed by law) shall take unlegended shares of Holder Stock, provided that such Permitted Transferees shall take the Holders Stock so acquired subject to the applicable lock-up restrictions set forth in this paragraph. 7. Section 4.1 is hereby revised and restated in its entirety to read as follows: United States Real Property Interests. The Company covenants and agrees that for so long as the Vistagreen Group holds, in the aggregate, Holders Stock acquired pursuant to this Agreement representing at least 1% of the outstanding shares of Common Stock of the Company, the Company shall not be or become a United States Real Property Holding Corporation as defined in Section 897(c)(2) of the Code nor shall the Holders Stock acquired pursuant to this Agreement be or become a United States Real Property Interest as defined in Section 897(c)(1)(A)(ii) of the Code. In addition, as of each Determination Date (as defined in Treasury Regulation Section 1.897-2(c)), including particularly a date of disposition, the Company shall provide to each member of the Vistagreen Group a statement complying with Treasury Regulation Section 1.897(g)(1)(ii) and shall also comply, on a timely basis, with the notice requirements of Treasury Regulation Section 1.897-2(h) including without limitation, timely notice to the Internal Revenue Service as provided in that Treasury Regulation, with a copy to each member of the Vistagreen Group, together with other Supporting Documents (as hereinafter defined), but dated as of the determination date. Any 19 23 notice conforming with or under Treasury Regulation Section 1.897-2(h) need to address the status of the Company as a United States Real Property Holding Corporation and the status of the Company Shares as a United States real property Interest only from a date that is no earlier than the date of the Effective Time. These covenants shall in all respects survive the Closing of this Agreement. 8. The introductory paragraph of Section 5.1(d) is hereby revised and restated in its entirety to read as follows (with subsections (i), (ii) and (iii) remaining unchanged: United Stated Real Property Holding Corporation. Neither the Surviving Corporation nor the Company is, as of the Effective Time, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code), and the Holders Stock to be acquired by the Holders, at the Effective Time, does not constitute a United States real property interest (as defined in Section 897(c)(1)(A)(ii) of the Code) ("USRPHC Condition Precedent"). To assure that the USRPHC Condition Precedent has been met the following shall be delivered to the Holders at Closing: 9. Section 6.1(b) is hereby deleted in its entirety and the remaining subsections of Section 6.1 are renumbered accordingly. 10. Each of the parties hereto agrees that it will use its commercially reasonable best efforts to do all things reasonably necessary to consummate the transactions contemplated hereby. 11. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. 12. This Amendment and the legal relations between the parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws rules thereof. 13. Except as specifically amended by this Amendment, all terms and conditions of the Stock Purchase Agreement shall remain unchanged and in full force and effect. 14. The parties hereby acknowledge and consent to the amendment as of the date hereof to that certain Agreement and Plan of Merger by and between Terremark Holdings, Inc., a Florida corporation and the Company dated as of November 24, 1999. IN WITNESS WHEREOF, each of Purchaser and the Company have caused this Amendment to Stock Purchase Agreement to be executed by their respective officers thereunto duly authorized, all as of the date first above written. AMTEC, INC. /s/ Joseph R. Wright, Jr., Chairman & Chief Executive Officer VISTAGREEN HOLDINGS (BAHAMAS), LTD. /s/ Peter B Evans, President PARADISE STREAM (BAHAMAS) /s/ Peter B. Evans, President MORAINE INVESTMENTS, INC. /s/ Peter B. Evans, President Terremark Holdings, Inc., a Florida corporation, hereby acknowledges and consents to this Amendment to the Stock Purchase Agreement. TERREMARK HOLDINGS, INC. /s/ Brian K. Goodkind, Executive Vice President 20 EX-99.4 5 0005.txt SHAREHOLDERS AGREEMENT DATED MAY 12, 2000 1 Exhibit 4 SHAREHOLDERS AGREEMENT THIS AGREEMENT is entered into as of this 12th day of May, 2000, by and between VISTAGREEN HOLDINGS (BAHAMAS), LTD., a Bahamas international business company ("Vistagreen"), MORAINE INVESTMENTS, INC., a British Virgin Islands international business corporation ("Moraine"), and PARADISE STREAM (BAHAMAS) LIMITED ("Paradise Stream"), a Bahamas international business company, each having an address c/o Karp & Genauer, P.A., 2 Alhambra Plaza, Suite 1202, Coral Gables, FL 33134, Attention: Joel J. Karp (Vistagreen, Moraine and Paradise Stream are hereinafter collectively referred to as the "Vistagreen Parties"), and the persons and entities listed on EXHIBIT "A" attached hereto, each having an address c/o Terremark Holdings, Inc., 2601 South Bayshore Drive, PH 1-B, Coconut Grove, Florida 33133, Attention: Brian Goodkind (collectively, the "Terremark Shareholders"). W I T N E S S E T H : WHEREAS, Terremark Holdings, Inc., a Florida corporation ("Terremark") and AmTec, Inc., a Delaware corporation ("AmTec") entered into the Agreement and Plan of Merger dated as of November 24, 1999 ("Merger Agreement") pursuant to which Terremark will merge into AmTec and the Terremark Shareholders will receive shares of common stock of AmTec, $0.001 par value ("AmTec Common Stock") as provided in the Merger Agreement; and WHEREAS, Vistagreen and AmTec entered into the Stock Purchase Agreement dated as of November 24, 1999 ("Stock Purchase Agreement") pursuant to which, immediately following the closing of the Merger Agreement, AmTec will sell to the Vistagreen Parties or their assignees shares of AmTec Common Stock as provided in the Stock Purchase Agreement in exchange for Note Proceeds (as defined in the Stock Purchase Agreement), together with all interest earned thereon; and WHEREAS, immediately following the closing of the Merger Agreement and the closing of the Stock Purchase Agreement the percentage ownership of the existing holders of AmTec Common Stock and Preferred Stock, Warrants, Options and other securities upon total exercise 2 or conversion prior to such closings shall be 25%, the percentage ownership of the Vistagreen Parties shall be 35% and the percentage ownership of the Terremark Shareholders shall be 40%, each such percentage representing the respective ownership of such parties of the AmTec Common Stock on a fully diluted basis immediately following such closings; and WHEREAS, certain affiliates of the Vistagreen Parties and certain affiliates of Terremark entered into the Contract for the Purchase and Sale of the General and Limited Partnership Interests of Terremark Centre, Ltd. dated as of November 24, 1999 ("Terremark Centre Purchase Agreement"), which requires, among other things, that the parties hereto enter into this Shareholders Agreement with respect to certain matters relating to their ownership and voting of AmTec Common Stock following the closings of the Merger Agreement and the Stock Purchase Agreement. WHEREAS, the parties intend by entering into this Shareholders Agreement ("Shareholders Agreement") to supercede by this Shareholders Agreement all prior agreements with respect to the subject matter hereof; and NOW THEREFORE, in order to satisfy the above described requirements contained in the Terremark Centre Purchase Agreement and in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. GENERAL AND DEFINITIONS. The recitals hereto are true and correct and are hereby incorporated herein by this reference. For purposes of this Agreement, a "Terremark Shareholder" shall include the persons and entities listed on EXHIBIT "A" attached hereto and any Affiliate of any such persons or entities. For purposes hereof, the "Vistagreen Parties" shall mean Vistagreen, Paradise Stream and Moraine and any Affiliate of Vistagreen, Paradise Stream or Moraine. For purposes hereof, "Affiliate" shall mean any person or entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person or entity, and, in the case of natural persons, shall also include any Family Member of any such natural person, but only with regard to AmTec Common Stock received by such Family Member from a party which acquired the same pursuant to the Merger Agreement or the Stock Purchase Agreement. For purposes hereof, "Family Member" of a natural person shall include the 2 3 following relationships to such natural person: father, mother, son, daughter, adopted son, adopted daughter, brother, sister, aunt, uncle, nephew, niece, grandfather, grandmother and first cousin. For purposes hereof, "Vistagreen Nominees" shall mean those persons designated by the Vistagreen Parties to serve as members of the Board of Directors of AmTec. For purposes hereof, "Terremark Nominees" shall mean those persons designated by the Terremark Shareholders to serve as members of the Board of Directors of AmTec. 2. ELECTION OF DIRECTORS. In connection with any and all elections of Directors to the Board of Directors of AmTec, the Terremark Shareholders agree to nominate or to cause to be nominated and to vote all of their shares of AmTec Common Stock to elect two (2) Vistagreen Nominees to the Board of Directors of AmTec. In addition, in connection with the election or appointment of members of the Executive Committee of the Board of Directors of AmTec, the Terremark Shareholders agree to elect or appoint or to cause all Terremark Nominees who become Directors of AmTec to elect or appoint one (1) of the Vistagreen Nominees to be a member of such Executive Committee. The Vistagreen Nominees shall advise the Terremark Nominees regarding which of the Vistagreen Nominees shall be a member of such Executive Committee. In connection with any and all elections of Directors to the Board of Directors of AmTec, the Vistagreen Parties agree to vote all of their shares of AmTec Common Stock in favor of electing all Terremark Nominees who are nominated for directorships in connection with such elections. In addition, in connection with the election or appointment of members of any committee of the Board of Directors of AmTec, the Vistagreen Parties agree to elect or appoint or to cause the Vistagreen Nominees who serve as members of the Board of Directors of AmTec to elect or appoint such Vistagreen Nominees as the Terremark Shareholders shall designate to be members of such committees of the Board of Directors of AmTec as the Terremark Shareholders shall designate. 3. TAGALONG RIGHTS. (a) If any of the Vistagreen Parties or the Terremark Shareholders propose to 3 4 sell, dispose of or otherwise transfer any AmTec Common Stock (each a "Disposing Stockholder"), such Disposing Stockholder shall refrain from effecting such transaction unless, prior to the consummation thereof, each other stockholder of AmTec who is a Vistagreen Party or a Terremark Stockholder (each a "Nondisposing Stockholder") shall have been afforded the opportunity to join in such sale on a pro-rata basis, as hereinafter provided, but subject to the limitations hereinafter provided. (b) Prior to consummation of any proposed sale, disposition or transfer of AmTec Common Stock described in subparagraph (a) above, the Disposing Stockholder shall cause the person or entity that proposes to acquire such shares (the "Proposed Purchaser") to offer ("Purchase Offer") in writing to each Nondisposing Stockholder to purchase shares of AmTec Common Stock owned by such Nondisposing Shareholder, such that the number of shares of such AmTec Common Stock so offered to be purchased from such Nondisposing Shareholder shall be equal to the product obtained by multiplying the total number of shares of such AmTec Common Stock then owned by such Nondisposing Shareholder, computed on a fully diluted basis, by a fraction, the numerator of which is the aggregate number of shares of AmTec Common Stock proposed to be purchased by the Proposed Purchaser from all stockholders of AmTec (including all Disposing Stockholders) and the denominator of which is the aggregate number of shares of AmTec Common Stock then outstanding, computed on a fully diluted basis. Such purchase shall be made at the highest price per share of AmTec Common Stock and on such other terms and conditions as the Proposed Purchaser has offered to purchase shares of AmTec Common Stock to be sold by the Disposing Stockholder. Each Nondisposing Stockholder shall have twenty (20) days from the date of receipt of the Purchase Offer in which to accept such Purchase Offer, and the closing of such purchase shall occur simultaneously with the closing of the purchase of AmTec Common Stock by the Proposed Purchaser from the Disposing Stockholder. The number of shares of Common Stock to be sold to the Proposed Purchaser by the Disposing Stockholder shall be reduced by the aggregate number of shares of Common Stock purchased by the Proposed Purchaser from the Nondisposing Stockholders pursuant to the acceptance by them of the Purchase Offer in accordance with the provisions of 4 5 this subparagraph (b), unless the Proposed Purchase is willing to purchase all of the available shares of AmTec Common Stock of the Disposing Stockholder and the Nondisposing Stockholders. In the event that a sale or other transfer subject to this Section is to be made to a Proposed Purchaser, the Disposing Stockholder shall notify the Proposed Purchaser that the sale or other transfer is subject to this Section and shall insure that no sale or other transfer is consummated without the Proposed Purchaser first complying with this Section. It shall be the responsibility of each Disposing Stockholder to determine whether any transaction to which it is a party is subject to this Section. (c) Notwithstanding the foregoing, a Disposing Stockholder shall not be subject to the restrictions of this Section in the event that the Disposing Stockholder proposes to sell in any transaction or series of related transactions a number of shares of AmTec Common Stock representing less than ten percent (10%) of the issued and outstanding shares of Common Stock of AmTec. For purposes of calculating the number of shares of AmTec Common Stock being sold in any transaction or series of related transactions the shares being sold by all Terremark Stockholders shall be aggregated as if being sold by one such Stockholder and a similar aggregation shall apply to the Vistagreen Parties. In addition, a Disposing Stockholder shall not be subject to the restrictions of this Section in the event that a Disposing Stockholder proposes to sell shares of AmTec Common Stock to an Affiliate of such Disposing Stockholder. (d) The requirements of this paragraph 3 shall not apply to open market sales through the American or other applicable Stock Exchange in accordance with the rules of said Exchange (or the NASDAQ or any other interdealer sale system in accordance with the rules of that system). Notwithstanding the foregoing, the requirements of this paragraph shall apply to any transaction involving direct negotiation between a buyer and a seller. For this purpose, a registered broker dealer acting in the ordinary course of business as a dealer, shall be deemed an intermediary, rather than a buyer. 4. (a) Neither a Vistagreen Party nor a Terremark Shareholder may sell, transfer, 5 6 assign or otherwise dispose of any of its AmTec Common Stock to an Affiliate unless such Affiliate agrees in writing to acquire such shares of AmTec Common Stock subject to the terms of this Agreement and to be bound by the terms of this Agreement. Any party who is not an Affiliate of a Vistagreen Party or a Terremark Shareholder may acquire shares of AmTec Common Stock from a Vistagreen Party or a Terremark Shareholder without being subject to the terms of this Agreement, provided that the transaction pursuant to which such non-Affiliate acquired such shares of AmTec Common Stock was not in violation of the terms of this Agreement. (b) The foregoing restriction shall not apply to open market sales through the American or other applicable Stock Exchange in accordance with the rules of said Exchange (or the NASDAQ or any other interdealer sales system in accordance with the rules of that system). Notwithstanding the foregoing, the foregoing restriction shall apply to any transaction involving direct negotiation between a buyer and a seller. For this purpose a registered broker dealer acting in the ordinary course of business as a dealer shall be deemed an intermediary, rather than a buyer. 5. This Agreement shall be binding on and inure to the benefit of the respective parties hereto and their successors and assigns. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement represents the entire understanding of the parties regarding the subject matter hereof, and supersedes any and all other inconsistent or conflicting prior agreements between the parties. The terms and provisions of this Agreement cannot be terminated or modified or amended orally or by course of conduct or dealing or in any manner except in a writing that is signed by the party against whom enforcement is sought. This Agreement shall be construed in accordance with the laws of the State of Florida, and any suit, action or proceeding arising out of or relating to this Agreement may be commenced and maintained in any court of competent subject matter jurisdiction in Miami-Dade County, Florida, and each party waives objection to such jurisdiction and venue. The provisions of this Agreement are severable, and any invalidity, unenforceability or illegality in any provision or 6 7 provisions hereof shall not affect the remaining provisions of this Agreement. In any suit, action or proceeding arising out of or in connection with this Agreement, the prevailing party shall be entitled to an award of the reasonable attorneys' fees and disbursements incurred by such party in connection therewith, including fees and disbursements in administrative, regulatory, insolvency, bankruptcy and appellate proceedings. All notices required or allowed hereunder shall be in writing and shall be deemed given upon (i) hand delivery or (ii) delivery by reputable overnight courier service, or (iii) delivery by facsimile with confirmation of receipt, or (iv) deposit of same in the United States Certified Mail, Return Receipt Requested, first class postage and registration fees prepaid and correctly addressed to the party for whom intended at their address written in the first page hereof, or such other address as is most recently noticed for such party as aforesaid. All references to gender or number in this Agreement shall be deemed interchangeably to have a masculine, feminine, neuter, singular or plural meaning, as the sense of the context requires. This Agreement may be executed in counterparts all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, Purchaser and Sellers have executed this Contract on the day and year first written above. VISTAGREEN HOLDINGS (BAHAMAS), LTD. By: /s/ ROGER CARPENTER ----------------------------------- ROGER CARPENTER MORAINE INVESTMENTS, INC. By: /s/ ADRIAN CROSBIE-JONES ----------------------------------- ADRIAN CROSBIE-JONES PARADISE STREAM (BAHAMAS) LIMITED) By: /s/ ADRIAN CROSBIE-JONES ----------------------------------- ADRIAN CROSBIE-JONES, VICE PRESIDENT TERREMARK SHAREHOLDERS /s/ BRIAN GOODKIND --------------------------------------- BRIAN GOODKIND /s/ MICHAEL L. KATZ --------------------------------------- MICHAEL L. KATZ /s/ WILLIAM BIONDI --------------------------------------- WILLIAM BIONDI /s/ EDWARD P. JACOBSEN --------------------------------------- EDWARD P. JACOBSEN 7 8 /s/ IRVING I. PADRON, JR. --------------------------------------- IRVING I. PADRON, JR. /s/ AVIVA BUDD --------------------------------------- AVIVA BUDD TCO COMPANY, LTD. By: /s/ ADRIAN CROSBIE-JONES ----------------------------------- Name: ADRIAN CROSBIE-JONES Title: BUSINESS ADMINISTRATION LIMITED-DIRECTOR /s/ MANUEL D. MEDINA --------------------------------------- MANUEL D. MEDINA /s/ WILLIAM BURMAYO --------------------------------------- WILLIAM BURMAYO ATTU SERVICES, INC. By: BUSINESS ADMINISTRATION LIMITED By: ----------------------------------- ADRIAN CROSBIE-JONES, DIRECTOR 8 9 EXHIBIT "A" BRIAN GOODKIND MICHAEL L. KATZ WILLIAM BIONDI EDWARD P. JACOBSEN IRVING I. PADRON, JR. AVIVA BUDD TCO COMPANY LIMITED MANUEL D. MEDINA WILLY BERMELLO ATTU SERVICES, INC. EX-99.5 6 0006.txt SHAREHOLDERS AGREEMENT DATED APRIL 21, 2000 1 Exhibit 5 SHAREHOLDERS AGREEMENT THIS AGREEMENT is entered into as of this 21st day of April, 2000, by and between MANUEL D. MEDINA, ATTU Services, Inc., TCO Company Limited, WILLY BERMELLO, BRIAN GOODKIND, MICHAEL KATZ, WILLIAM BIONDI, EDWARD JACOBSEN, IRVING PADRON, JR., AND AVIVA BUDD each having an address c/o Terremark Holdings, Inc., 2601 South Bayshore Drive, 9th Floor, Coconut Grove, Florida 33133, Attention: Brian Goodkind (collectively, the "Terremark Shareholders"). W I T N E S S E T H : WHEREAS, Terremark Holdings, Inc., a Florida corporation ("Terremark") and AmTec, Inc., a Delaware corporation ("AmTec") entered into the Agreement and Plan of Merger dated as of November 24, 1999 ("Merger Agreement") pursuant to which Terremark will merge into AmTec and the Terremark Shareholders will receive shares of common stock of AmTec, $0.001 par value ("AmTec Common Stock") as provided in the Merger Agreement; and WHEREAS, Vistagreen Holdings (Bahamas), Ltd., a Bahamas corporation ("Vistagreen") and AmTec entered into a Stock Purchase Agreement dated as of November 24, 1999 ("Stock Purchase Agreement") pursuant to which, immediately following the closing of the Merger Agreement, AmTec will sell to Vistagreen and Moraine Investments, Inc., a British Virgin Islands international business corporation (collectively the "Vistagreen Parties"), or their assignees, shares of AmTec Common Stock as provided in the Stock Purchase Agreement in exchange for Note Proceeds (as defined in the Stock Purchase Agreement), together with all interest earned thereon; and 2 WHEREAS, immediately following the closing of the Merger Agreement and the closing of the Stock Purchase Agreement the percentage ownership of the existing holders of AmTec Common Stock and Preferred Stock, Warrants, Options and other securities upon total exercise or conversion prior to such closings shall be 25%, the percentage ownership of the Vistagreen Parties shall be 35% and the percentage ownership of the Terremark Shareholders shall be 40%, each such percentage representing the respective ownership of such parties of the AmTec Common Stock on a fully diluted basis immediately following such closings; and WHEREAS, Katz, Biondi, Goodkind, Padron, Budd and Jacobsen own preferred convertible stock (the "Preferred Stock"), which stock is convertible pursuant to a valuation formula set forth in the statement of preferences for such Preferred Stock, and the holders of such Preferred Stock are desirous of converting same and are required to do so by virtue of the Merger Agreement; and WHEREAS, the Terremark Shareholders wish to enter into this shareholder agreement (the "Agreement") pursuant to Section 607.0731 of the Florida Business Corporation Act to ensure that the Terremark Shareholders vote as a group, as directed by Manual D. Medina; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. CONVERSION OF PREFERRED STOCK. The Terremark Shareholders recognize that the Preferred Stock must be converted to Terremark common stock prior to the closing on the Merger Agreement and that either Terremark Holdings or the holders of the Preferred Stock have the right to force such a conversion. The parties also recognize that the conversion formula is based on a valuation of the Company and differs depending upon whether conversion is at the option of the Company or the holders and, if at the option of the Company, the reason why it is being required. In order to avoid delay, cost and potential disagreement, all parties hereto stipulate that, for the purposes of this document, the value of the Company is $15,000,000, and that pursuant to paragraph E(iv) of the statement of preferences governing the Preferred Stock, such stock shall convert into 124,584 shares of common stock, representing 10% of the total of all then outstanding Terremark Common Stock. 2. VOTING OF AMTEC SHARES. In any vote of the AmTec Common Stock, whether at a meeting or by written consent, the Terremark Shareholders agree to vote all shares of AmTec Common Stock received pursuant to the Merger Agreement and any subsequently acquired, as directed by Manuel D. Medina for one year from the date of the closing on the Merger Agreement. Thereafter, any one or more of the Terremark Shareholders can elect to remove themselves from this voting agreement by providing ninety days written notice to all other Terremark Shareholders. 3. BINDING NATURE. This Agreement shall be binding on and inure to the benefit of the respective parties hereto and their successors and assigns. Section 607.0731 of the Florida Business Corporation Act provides that this Agreement is binding on the transferees of the parties to this Agreement, provided that the transferee takes the AmTec Common Stock subject to this Agreement with notice thereof. The parties hereby, and their successors and assigns, agree to provide notice of this Agreement to any transferee prior to any transfer of AmTec Common Stock. Notwithstanding the foregoing, this Agreement shall not be binding with regard to AmTec Common Stock sold in the ordinary course over the American Stock Exchange or on any such other exchange on which the stock may, from time to time, be listed. 4. OTHER PROVISIONS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement represents the entire understanding of the parties regarding the subject matter hereof, and supersedes any and all other inconsistent or conflicting prior agreements between the parties. The terms and provisions of this Agreement cannot be terminated or modified or amended orally or by course of conduct or dealing or in any manner except in a writing that is signed by the party against whom enforcement is sought. This Agreement shall be construed in accordance with the laws of the State of Florida, and any suit, 2 3 action or proceeding arising out of or relating to this Agreement may be commenced and maintained in any court of competent subject matter jurisdiction in Miami-Dade County, Florida, and each party waives objection to such jurisdiction and venue. The provisions of this Agreement are severable, and any invalidity, unenforceability or illegality in any provision or provisions hereof shall not affect the remaining provisions of this Agreement. In any suit, action or proceeding arising out of or in connection with this Agreement, the prevailing party shall be entitled to an award of the reasonable attorneys' fees and disbursements incurred by such party in connection therewith, including fees and disbursements in administrative, regulatory, insolvency, bankruptcy and appellate proceedings. All notices required or allowed hereunder shall be in writing and shall be deemed given upon (i) hand delivery or (ii) delivery by reputable overnight courier service, or (iii) delivery by facsimile with confirmation of receipt, or (iv) deposit of same in the United States Certified Mail, Return Receipt Requested, first class postage and registration fees prepaid and correctly addressed to the party for whom intended at their address written in the first page hereof, or such other address as is most recently noticed for such party as aforesaid, or (v) via overnight courier. All references to gender or number in this Agreement shall be deemed interchangeably to have a masculine, feminine, neuter, singular or plural meaning, as the sense of the context requires. IN WITNESS WHEREOF, the execution of this Agreement as of the date first above written. TERREMARK SHAREHOLDERS /s/ Brian Goodkind --------------------------------------------- BRIAN GOODKIND /s/ Michael L. Katz --------------------------------------------- MICHAEL L. KATZ /s/ William Biondi --------------------------------------------- WILLIAM BIONDI /s/ Edward P. Jacobsen --------------------------------------------- EDWARD P. JACOBSEN /s/ Irving I. Padron, Jr. --------------------------------------------- IRVING I. PADRON, JR. 3 4 AJR, LLC, a Connecticut Limited Liability Company By: /s/ Aviva Budd ----------------------------------------- Name: AVIVA BUDD Title: Managing Member ATTU SERVICES, INC. By: /s/ Adrian Crosbie-Jones ----------------------------------------- Name: ADRIAN CROSBIE-JONES Title: Business Administration Limited - Director /s/ Manuel D. Medina --------------------------------------------- MANUEL D. MEDINA /s/ William Bermello --------------------------------------------- WILLIAM BERMELLO TCO COMPANY, LTD. By: /s/ Adrian Crosbie-Jones ----------------------------------------- Name: ADRIAN CROSBIE-JONES Title: Business Administration Limited - Director 4 -----END PRIVACY-ENHANCED MESSAGE-----