Terremark Worldwide, Inc. (NASDAQ:TMRK) today announced that it has
entered into a memorandum of understanding (MOU) providing for the
settlement of all eight putative class action lawsuits that have been
brought in Delaware and Florida in connection with the previously
announced Agreement and Plan of Merger dated January 27, 2011 among
Terremark, Verizon Communications Inc. and Verizon Holdings Inc.,
whereby all outstanding shares of Terremark common stock will be
acquired by Verizon in a tender offer and merger transaction for $19.00
net per share in cash.
Pursuant to the MOU, the parties have agreed to enter into a definitive
stipulation of settlement (Definitive Settlement) that will settle all
claims that were or could have been made in the lawsuits by all
plaintiffs against Terremark and each of its directors, Verizon and all
other defendants in connection with the Merger Agreement and the
transactions contemplated thereby. The Definitive Settlement will
provide that, upon the approval thereof by the Delaware Court of
Chancery, all eight pending lawsuits will be dismissed with prejudice.
There can be no assurance that the parties will enter into a Definitive
Settlement or that the Delaware Court will approve it. If the Definitive
Settlement is not approved by the Delaware Court, the settlement
contemplated by the MOU would be null and void. If the Definitive
Settlement is not approved, Terremark and the other defendants will
continue to vigorously defend against the allegations set forth in the
lawsuits.
Pursuant to the terms of the settlement, Terremark has agreed to make
certain additional disclosures regarding the background of the events
leading to the signing of the Merger Agreement on January 27, 2011 and
with respect to certain of the analyses undertaken by Terremark’s
financial advisor in connection with such financial advisor’s assessment
of the fairness to Terremark’s stockholders, from a financial point of
view, of the $19.00 net per share tender offer price and merger
consideration. Terremark and Verizon also have agreed to an amendment to
the Merger Agreement to extend the initial expiration date of the tender
offer to March 21, 2011 from the previous March 10, 2011 expiration
date, eliminate a so-called "force-the-vote” covenant whereby, in
certain limited circumstances Verizon previously could have required
Terremark to hold a special meeting of the holders of common stock of
Terremark to vote for the adoption of the Merger Agreement,
notwithstanding a prior determination by Terremark’s directors to
withdraw their recommendation of the transaction, reduce to $40,000,000
from $52,500,000 the termination fee payable to Verizon under the
circumstances contemplated by the Merger Agreement, and provide that
Verizon will not under any circumstances exercise the "top-up” option
granted to Verizon under the Merger Agreement.
Terremark and the other defendants continue to deny all allegations of
wrongdoing, fault, liability or damage to plaintiffs and the putative
class of Terremark stockholders, and specifically deny any breach of
fiduciary duty in connection with the Merger Agreement and the
transactions contemplated thereby. Terremark and the other defendants
further specifically deny that any of the new disclosures, which are
being made pursuant to the MOU strictly for litigation settlement
purposes are material to Terremark’s stockholders or are otherwise
required to be disclosed under federal securities laws, state corporate
law or under any other regulation or law.
Terremark intends to file an amendment to its Schedule 14D-9 on or about
March 1, 2011 to include the new disclosures required by the MOU,
describe the amended terms of the Merger Agreement and confirm the
recommendation of Terremark’s directors that Terremark’s stockholders
should accept the tender offer and tender their shares of common stock
of Terremark pursuant thereto.
The eight putative class action lawsuits referred to above that are
being settled are: (i) Schaefer v. Terremark Worldwide, Inc., et al.
(Case No. 11-03279-CA-32), filed on January 31, 2011, in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida; (ii) Stackewicz v. Terremark Worldwide, Inc., et al.
(Case No. 11-03106-CA-40), filed on January 28, 2011, in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida; (iii) Jiannaras v. Terremark Worldwide, Inc., et al.
(Case No. 11-03471-CA-40), filed on February 2, 2011, in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida; (iv) Hogan v. Terremark Worldwide, Inc., et al. (Case
No. 1:11-cv-20369), filed on February 2, 2011 in the United States
District Court, Southern District of Florida, Miami Division; (v) Minneapolis
Firefighters’ Relief Association v. Guillermo Amore, et al. (Case
No. 6175-VCN), filed on February 7, 2011 in the Court of Chancery of the
State of Delaware; (vi) Trejo v. Terremark Worldwide, Inc., et al.
(Case No. 11-04668-CA-3), filed on February 11, 2011, in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida; (vii) Adams v. Guillermo Amore, et al. (Case No.
11-04838-CA-13), filed on February 14, 2011, in the Circuit Court of the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida and
(viii) Abril v. Manuel Medina, et al. (Case No. 1:11-CV-20555);
filed on February 18, 2011 in the United States District Court, Southern
District of Florida, Miami Division.
About Terremark Worldwide, Inc.
Terremark Worldwide (NASDAQ:TMRK) is a leading global provider of IT
infrastructure services delivered on the industry’s most robust and
advanced technology platform. Leveraging data centers in the United
States, Europe and Latin America with access to massive and diverse
network connectivity, Terremark delivers government and enterprise
customers a comprehensive suite of managed solutions including managed
hosting, colocation, disaster recovery, security, data storage and cloud
computing services. Terremark’s Enterprise Cloud computing architecture
delivers the agility, scale and economic benefits of cloud computing to
mission-critical enterprise and Web 2.0 applications and its DigitalOps®
service platform combines end-to-end systems management workflow with a
comprehensive customer portal. More information about Terremark
Worldwide can be found at http://www.terremark.com.
Additional Information and Where to Find It
This press release is not an offer to purchase nor a solicitation of an
offer to sell securities. Verizon's tender offer for shares of
Terremark's common stock commenced on February 10, 2011, and, in
connection with the offer, Verizon caused a new subsidiary, Verizon
Holdings, to file a tender offer statement on Schedule TO with the
Securities and Exchange Commission (the "SEC"). Terremark stockholders
are strongly advised to read the tender offer statement, as amended from
time to time (including the offer to purchase, letter of transmittal and
related tender offer documents), and the related
solicitation/recommendation statement on Schedule 14D-9, as amended from
time to time, filed by Terremark with the SEC because they contain
important information about the proposed transaction. These documents
are available at no charge on the SEC's website at www.sec.gov.
In addition, a copy of the offer to purchase, letter of transmittal and
certain other related tender offer documents may be obtained free of
charge by directing a request to Verizon at 212-395-1525. A copy of the
tender offer statement and the solicitation/recommendation statement are
also available to all stockholders of Terremark by contacting
Terremark's Investor Relations at 305-961-3109 or hblankenbaker@terremark.com.
This communication may be deemed to be solicitation material in respect
of the proposed acquisition of Terremark by Verizon. In connection with
the proposed acquisition, Terremark filed a proxy statement in
preliminary form with the SEC on February 22, 2011, and intends to file
relevant materials with the SEC, including Terremark's proxy statement
in definitive form. Terremark stockholders are strongly advised to read
all relevant documents filed with the SEC, including Terremark's
definitive proxy statement, because they will contain important
information about the proposed transaction. These documents will be
available at no charge on the SEC's website at www.sec.gov.
In addition, documents will also be available for free from Terremark by
contacting Terremark's Investor Relations at 305-860-7822 or hblankenbaker@terremark.com.
Participants in Solicitation
Verizon and its directors and executive officers, and Terremark and its
directors and executive officers, may be deemed to be participants in
the solicitation of proxies from the holders of Terremark common stock
in respect of the proposed transaction. Information about the directors
and executive officers of Verizon is set forth in the proxy statement
for Verizon's 2010 Annual Meeting of Stockholders, which was filed with
the SEC on March 22, 2010. Information about the directors and executive
officers of Terremark is set forth in the proxy statement for
Terremark's 2010 Annual Meeting of Stockholders, which was filed with
the SEC on June 17, 2010. Investors may obtain additional information
regarding the interest of such participants by reading the definitive
proxy statement regarding the acquisition when it becomes available.
Certain statements in this communication regarding the proposed
transaction between Verizon and Terremark, the expected timetable for
completing the transaction, benefits and synergies of the transaction,
future opportunities for the combined company and products and any other
statements regarding Verizon’s and Terremark’s future expectations,
beliefs, goals or prospects constitute forward-looking statements. Any
statements that are not statements of historical fact (including
statements containing the words "believes,” "plans,” "anticipates,”
"expects,” "estimates” and similar expressions) should also be
considered forward-looking statements. A number of important factors
could cause actual results or events to differ materially from those
indicated by such forward-looking statements, including the parties’
ability to consummate the transaction; the timing for satisfying the
conditions to the completion of the transaction, including the receipt
of Terremark stockholder approval and the regulatory approvals required
for the transaction; the parties’ ability to meet expectations regarding
the timing, completion and accounting and tax treatments of the
transaction; the possibility that the parties may be unable to achieve
expected synergies and operating efficiencies within the expected
time-frames or at all and to successfully integrate Terremark’s
operations into those of Verizon or that such integration may be more
difficult, time-consuming or costly than expected; operating costs,
customer loss and business disruption (including, without limitation,
difficulties in maintaining relationships with employees, customers,
clients or suppliers) may be greater than expected following the
transaction; the retention of certain key employees of Terremark may be
difficult; and the other factors described in Verizon’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2010, and Terremark’s
Annual Report on Form 10-K for the fiscal year ended March 31, 2010 and
in its most recent quarterly report filed with the SEC. Verizon and
Terremark assume no obligation to update the information in this
communication, except as otherwise required by law. Readers are
cautioned not to place undue reliance on these forward-looking
statements that speak only as of the date hereof.
