EX-10.1






Exhibit 10.1




TERREMARK WORLDWIDE, INC.


SUBSCRIPTION AGREEMENT




     This SUBSCRIPTION AGREEMENT (the “Subscription Agreement”), is made and entered into as of the
date set forth on the execution page below, by and between Terremark Worldwide, Inc. (the
“Company”) and VMware Bermuda Limited (the “Investor”).



R E C I T A L S :




     The Company desires to sell and the Investor desires to buy shares (the “Common
Shares”) of the Common Stock, par value $.001 of the Company (the “Common Stock”).
Investor is a wholly-owned subsidiary of VMware, Inc. (“Parent”).



     NOW, THEREFORE, in consideration of the above recitals and the mutual covenants,
representations, warranties and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
intending to be legally bound do hereby agree as follows:



          1. Subscription and Payment. Subject to the terms and conditions herein set forth, the
Investor hereby subscribes for and agrees to purchase (the “Stock Purchase”) four million
(4,000,000) Common Shares for five dollars ($5.00) per share for an aggregate purchase price equal
to Twenty Million Dollars ($20,000,000) (the “Purchase Price”).



          2. Closing. The Company and the Investor shall hold a closing of the Stock Purchase
(the “Closing”) at any mutually agreeable date and time (the “Closing Date”), which
date and time shall occur no later than 5:00 p.m., ET, on June 1, 2009 or such later date as is
mutually agreed to by the parties. Any Closing shall take place at the offices of the Company or
such other mutually agreeable location. At such Closing, (i) the Company shall deliver to the
Investor an executed copy of (A) a certificate evidencing the number of Common Shares; (B) the
opinion of Greenberg Traurig, P.A., the delivery of which is a condition to closing pursuant to
Section 10(c); (C) the certificate to be delivered pursuant to Section 10(d); (D) the secretary’s
certificate to be delivered pursuant to Section 10(e) and (E) such other certificates, instruments,
opinions and documents as are otherwise set forth herein or contemplated hereby or reasonably
requested by the Investor; and (ii) the Investor shall deliver to the Company an executed copy of
(A) the certificate to be delivered pursuant to Section 11(d); (B) the secretary’s certificate to
be delivered pursuant to Section 11(e) and (C) such certificates, instruments, opinions and
documents as are set forth herein or contemplated hereby or reasonably requested by the Company,
together with delivery of the Purchase Price described in Section 1 above by wire transfer to an
account designated in writing by the Company no later than one (1) business day prior to the
Closing, payable in immediately available funds.



          3. Representations and Warranties by Investor. The Investor hereby represents and
warrants to the Company that:




          (a) The Investor is an “accredited investor” as that term is defined in Rule 501(a)
under the Securities Act of 1933, as amended (the “Securities Act”) and as set forth
and described in Exhibit A attached hereto;



 









 






          (b) The Investor has the requisite knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of an investment in the Company;




          (c) The Investor has received and read the Disclosure Documents (as defined in
Section 4(a)) and has evaluated the risks of investing in the Company;




          (d) The Investor has been given the opportunity to ask questions of and receive answers
from the Company concerning the terms and conditions of the Stock Purchase, and has been
given the opportunity to obtain additional information necessary to verify the accuracy of
the information contained in the Disclosure Documents or such other information as it
desired in order to evaluate its investment;




          (e) In making the decision to purchase the Common Shares herein subscribed for, the
Investor has relied and will rely solely upon the Disclosure Documents, the representations,
warranties, agreements, undertakings and acknowledgments of the Company in this Subscription
Agreement, press releases issued by and reports filed by the Company with the Securities and
Exchange Commission (the “Commission”), prior to the date hereof, but including the
press release the Company intends to issue on May 26, 2009 disclosing certain financial
information about the Company for the Company’s fiscal year ended March 31, 2009;




          (f) The Investor understands that an investment in the Common Shares involves certain
risks and the Investor has taken full cognizance of and understands such risks, including,
without limitation, those set forth in the Disclosure Documents;




          (g) The Investor understands that none of the Common Shares have been registered under
the Securities Act, and agrees that none of the Common Shares may be sold, offered for sale,
transferred, pledged, hypothecated or otherwise disposed of except in compliance with the
Securities Act and subject to the terms of this Subscription Agreement;




          (h) The Investor understands that no federal or state agency has made any finding or
determination as to the fairness of the investment in, or any recommendation or endorsement
of, the Common Shares;




          (i) The Common Shares herein subscribed for are being acquired by the Investor in good
faith solely for the account of the Investor, for investment purposes and not with a view to
subdivision, distribution or resale. The Investor will not sell or otherwise dispose of any
Common Shares, unless:




          (i) the Investor shall have advised the Company in writing that it intends to
dispose of the Common Shares as well as the manner in which the Investor intends to
dispose of the Common Shares, and counsel reasonably acceptable to the Company shall
have delivered to the Company an opinion reasonably acceptable to the Company and
Company’s counsel that registration is
not required under the Securities Act or under any applicable securities laws
of any jurisdiction;



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          (ii) a registration statement on an appropriate form under the Securities Act,
or a post-effective amendment to such registration statement, covering the proposed
sale or other disposition of such Common Shares shall be in effect under the
Securities Act and such Common Shares or the proposed sale or other disposition
thereof shall have been registered or qualified under applicable securities laws of
any jurisdiction; or




          (iii) such sale or other disposition shall be to any of the Investor Parties
(as defined in Section 8(a)); provided that, as a condition to such sale or
other disposition, such Investor Party signs a joinder in form reasonably acceptable
to the Company pursuant to the terms of which such Investor Party agrees to be bound
by the terms of this Agreement and deemed the “Investor” hereunder for all
purposes.




          (j) The Investor acknowledges and agrees that the certificates representing the Common
Shares shall bear a legend in substantially the form appearing below (unless subsequently
registered under the Securities Act):




“THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD,
PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT THAT HAS BECOME EFFECTIVE AND IS CURRENT WITH
RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT BUT ONLY UPON THE COMPANY FIRST HAVING
OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE CORPORATION, OR OTHER COUNSEL
REASONABLY ACCEPTABLE TO THE CORPORATION, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY
APPLICABLE “BLUE SKY” OR SIMILAR SECURITIES LAWS.”




          (k) The Investor represents and warrants that (i) the individual executing this
Subscription Agreement has appropriate authority to act on behalf of the Investor and (ii)
the Investor is not an Investment Company, as defined under the Investment Company Act of
1940, as amended. This Subscription Agreement has been duly executed and delivered by or on
behalf of the Investor and (assuming the accuracy of the Company’s representations and
warranties herein) constitutes the valid and binding agreement of the Investor, enforceable
against the Investor in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors’ rights generally and
except that the availability of the equitable remedy of
specific performance or injunctive relief is subject to the discretion of the court
before which any proceeding may be brought).



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          (l) The Investor understands that the Common Shares are being offered and sold hereby
in reliance on specific exemptions from the registration requirements of the Securities Act
and that the Company is relying on the foregoing representations, warranties, agreements,
undertakings and acknowledgments in determining the availability of such exemptions and the
Investor’s suitability as the purchaser of the Common Shares.




          (m) The Investor acknowledges the disclosure items set forth on Schedule 3(m) attached
hereto.



          4. Representations and Warranties of the Company. The Company represents and warrants
to the Investor that:




          (a) The Company has duly filed with the Commission all reports (individually a
“Report” and collectively the “Reports”) required to be filed by it by the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) since March 31,
2008, including the Company’s Annual Report on Form 10-K for the Company’s fiscal year ended
March 31, 2008, as amended, the Company’s Quarterly Reports on Form 10-Q for the Company’s
fiscal quarters ended June 30, 2008 and September 30, 2008, the Company’s proxy statement
for its annual meeting of stockholders held on October 10, 2008 and the Company’s Current
Reports on Form 8-K, dated each of July 18, 2008, November 4, 2008 and March 10, 2009, which
filings are incorporated herein by reference. Such filings, and all other documents
incorporated by reference in any Registration Statement (collectively, the “Disclosure
Documents”), complied in all material respects with the Exchange Act. Each Disclosure
Document did not, as of the date on which it was signed or issued, as applicable, contain
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, and in light of the circumstances under which they were
made, not misleading. As of their respective filing dates, or such later date on which such
reports were amended, the Reports complied in all material respects with the requirements of
the Exchange Act. The financial statements included in the Reports (the “Financial
Statements”) comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission. The Financial
Statements have been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present, in all material respects, the financial position of
the Company at the dates thereof and the results of its operations and consolidated cash
flows for the periods then ended (subject, in the case of unaudited statements, to normal,
recurring adjustments).




          (b) To the Company’s knowledge, no event or circumstance has occurred or information
exists with respect to the Company or any of its subsidiaries or its or their business,
properties, operations or financial conditions, which, under applicable law, rule or
regulation, requires public disclosure or announcement by the Company but which has not been
so publicly announced or disclosed, except for the
announcement of this Agreement and related transactions and as may be disclosed on the
Form 8-K filed pursuant to Section 6(e).



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          (c) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with full power and authority
(corporate and other) to own its properties and conduct its business as presently conducted,
and is duly qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business conducted by it or the nature of
the properties owned or leased by it makes such qualification necessary for the conduct of
its business as presently conducted except where the failure to be so qualified would not
have a material adverse effect on the Company.




          (d) All of the Company’s outstanding shares of capital stock have been duly authorized,
validly issued and are fully paid and nonassessable, have been issued in compliance with all
federal and state securities laws and are not issued in violation of or subject to any
preemptive, co-sale or other rights to subscribe for or purchase securities. The authorized
capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, par value
$.001 per share, of which 60,135,202 shares were issued and outstanding as of the date
hereof; and (ii) 10,000,000 shares of Preferred Stock, par value $0.001 per share of which
312 shares of Series I Convertible Preferred Stock were issued and outstanding and were
convertible into 1,041,333 shares of Common Stock as of the date hereof. The Company has
options (the “Options”) and warrants (the “Warrants”) outstanding which are
exercisable into an aggregate of 2,205,137 and 2,021,950 shares of Common Stock,
respectively, and 9% Senior Convertible Notes due June 15, 2009 (the “9% Convertible
Notes”), 6.625% Senior Convertible Notes due June 15, 2013 (the “6.625% Convertible
Notes”) and 0.5% Senior Subordinated Convertible Notes due June 30, 2009 (the “0.5%
Convertible Notes and, together with the 9% Convertible Notes and the 6.625% Convertible
Notes, the “Convertible Notes”) which are convertible into 2,324,800, 4,575,200 and
491,400 shares of Common Stock, respectively. The terms of the Series I Convertible
Preferred Stock, the Options, the Warrants and the Convertible Notes are set forth in the
Company’s Reports, including the exhibits referenced therein, true and correct copies of
which have been previously provided to the Investor. Except as set forth herein, as of the
date of this Agreement (i) there are no outstanding options, warrants scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities or
rights convertible into, any shares of capital stock of the Company, or arrangements by
which the Company is or may become bound to issue additional shares of capital stock of the
Company, and (ii) the Company has no other shares of capital stock reserved for issuance
except for 5,000,000 shares reserved for issuance pursuant to the Company’s 2005 Executive
Incentive Compensation Plan, of which the shares of Common Stock underlying the Options form
a part..




          (e) The Company has all requisite power and authority to issue, sell and deliver the
Common Shares in accordance with and upon the terms and conditions set forth in this
Subscription Agreement, and all corporate action required to be taken by the Company for the
due and proper authorization, issuance, sale and delivery of the Common Shares has been
validly and sufficiently taken. The Common Shares have been duly authorized and, when
issued, sold and delivered in accordance with this Agreement
for the consideration expressed herein, will be validly issued, fully paid and
nonassessable.



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          (f) Except as described in the Disclosure Documents or herein, there are no preemptive
rights or other rights to subscribe for or to purchase, or any restriction upon the voting
or transfer of, any shares of Common Stock pursuant to the Company’s Restated Certificate of
Incorporation, as amended, or Bylaws, as amended, or any agreement or other instrument to
which the Company is a party. The issuance of the Common Shares pursuant to this
Subscription Agreement will not give rise to any preemptive rights or rights of first
refusal, co-sale rights or any other similar rights on behalf of any person or result in the
triggering of any anti-dilution or other similar rights. There are no securities or
instruments containing anti-dilution provisions that are triggered by the Stock Purchase.




          (g) The Company has full right, power and authority to enter into this Subscription
Agreement and this Subscription Agreement has been duly authorized, executed and delivered
by the Company and no further consent or action is required by the Company, its Board of
Directors, or its stockholders. Assuming the accuracy of the Investor’s representations and
warranties herein, this Subscription Agreement constitutes the legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its terms
(except in all cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the enforcement of
creditors’ rights generally and except that the availability of the equitable remedy of
specific performance or injunctive relief is subject to the discretion of the court before
which any proceeding may be brought).




          (h) The execution, delivery and performance by the Company of this Subscription
Agreement and the other documents delivered by the Company pursuant hereto and the
consummation by the Company of the transactions contemplated hereby and thereby do not and
will not (i) conflict with or violate any provisions of the Company’s Restated Certificate
of Incorporation, as amended, or Bylaws, as amended, (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, or give any rights to receipt of any
portion of the proceeds from the sale of the Common Shares pursuant to, any agreement,
credit facility, debt or other instrument (evidencing a Company debt or otherwise) to which
the Company is a party or by which any property or asset of the Company is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority to which the
Company is subject (including any federal and state securities laws and regulations) and the
rules and regulations of any self-regulatory organization to which the Company or its
securities are subject, or by which any property or assets of the Company is bound or
affected except in the case of clauses (ii) and (iii), such as would not be, individually or
in the aggregate, materially adverse to the Company and its subsidiaries taken as a whole.



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          (i) The Company is not in violation of any law, ordinance, governmental rule or
regulation or court decree (including any rule, regulation or listing standard of the NASDAQ
Global Market) to which it may be subject and the Company has not failed to obtain any
license, permit, franchise or other governmental authorization necessary to the ownership of
its property or to the conduct of its business, which violation or failure to obtain is
likely to have a material adverse effect on the condition (financial or other), business or
results of operations of the Company.




          (j) Since December 31, 2008, except as set forth in the Disclosure Documents or in the
Reports (as the same have been amended or supplemented from time to time), there has not
been any change in the assets, liabilities, financial condition or operations of the Company
reflected in the Financial Statements except changes in the ordinary course of business
which have not been, in the aggregate, materially adverse to the Company and its
subsidiaries taken as a whole.




          (k) Except as set forth in the Disclosure Documents, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or body pending
or, to the knowledge of the Company, threatened against or affecting the Company or any of
its subsidiaries, wherein an unfavorable decision, ruling or finding would have a material
adverse effect on the operations, properties or financial condition of the Company and its
subsidiaries taken as a whole or which would adversely affect the validity or enforceability
of, or the authority or ability of the Company to perform its obligations under, this
Agreement or any of the documents contemplated herein. Except for certain litigation with
Strategic Growth International, Inc. described in the Company’s reports under “Legal
Proceedings”, neither the Company nor its subsidiaries, nor any director or officer thereof,
is, or within the last ten years has been, the subject of any action involving a claim of
violation of or liability under federal or state securities laws relating to the Company or
a claim of breach of fiduciary duty relating to the Company.




          (l) Except as set forth herein, other than the filing with the Commission of a Form D
and one or more Registration Statements in accordance with the requirements hereof and any
other filings as may be required by any state securities agencies or the Nasdaq Stock
Market, which may pursuant to such laws or rules be made after the date hereof, the Company
is not required to obtain any consent, authorization or order of, or make any filing or
registration with, any court, governmental agency or any regulatory or self-regulatory
agency or any other person in order for it to execute, deliver or perform any of its
obligations under or contemplated by this Agreement, in each case in accordance with the
terms hereof or thereof.




          (m) The Company is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be
prudent and customary in the businesses in which the Company is engaged. The Company has
not been refused any insurance coverage sought or applied for and the Company has no reason
to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a material adverse effect.



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          (n) The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them which
is material to the business of the Company and its subsidiaries, in each case free and clear
of all liens, encumbrances and defects except as otherwise noted in the Disclosure Documents
or such as do not materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and any of its
subsidiaries. Any real property and facilities held under lease by the Company or any of
its subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries.




          (o) The Company and its subsidiaries have sufficient title and ownership of the Company
Intellectual Property and sufficient license grants under third-party patents, trademarks,
service marks, trade names, copyrights, trade secrets, information, proprietary rights and
processes necessary to conduct its business as now conducted, and to the best of its
knowledge, without any conflict with or infringement of the rights of others. The Company
and its subsidiaries have not received any communications alleging that the Company or its
subsidiaries have violated or, by conducting their business as proposed, would violate any
of the patents, trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. None of the Company’s rights in the
Company Intellectual Property have expired, terminated or been abandoned, or are expected to
expire, terminate or be abandoned, within three years from the date of this Agreement. The
Company does not have any knowledge of any infringement by the Company or any of its
subsidiaries of Intellectual Property Rights of others. For purposes hereof, “Company
Intellectual Property” shall mean all patents, trademarks, servicemarks, tradenames,
copyrights, trade secrets or other items of intellectual property, including any and all
registrations and applications therefor, which are owned by the Company or its subsidiaries
and all designs, methods, inventions and know-how related thereto, and all trademarks,
tradenames, service marks and copyrights claimed or used by the Company or its subsidiaries
which have not been registered.




          (p) The Company and its subsidiaries have taken all reasonable security measures to
protect the secrecy, confidentiality, and value of all trade secrets, know-how, inventions,
designs, processes, and technical data required to conduct their business.




          (q) The Company has not, in the twelve months preceding the date hereof, received
notice (written or oral) from the Financial Industry Regulatory Authority (“FINRA”) or
NASDAQ to the effect that the Company is not in compliance with the listing or maintenance
requirements of the NASDAQ Global Market. The Company is in compliance in all material
respects with all such listing and maintenance requirements. The issuance and sale of the
Common Shares under this Subscription Agreement does not contravene the rules and
regulations of the NASDAQ Global Market, and no approval of the stockholders of the Company
thereunder is required for the Company to issue and deliver the Common Shares to the
Investor.



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          (r) Except for minutes of meetings of the Board of Directors, the Audit Committee of
the Board of Directors and the Compensation Committee of the Board of Directors all held on
May 22, 2009, the corporate minute book of the Company and its subsidiaries, a copy of which
was made available for inspection by the Investor, contains true and complete copies of the
certificate of incorporation and other charters, bylaws, and copies of or, in the case of
meetings held during this or the previous quarter, drafts in substantially final form of,
the minutes of all meetings of directors, committees of the Board of Directors and
stockholders and consent resolutions reflecting all actions taken by the directors or
stockholders without a meeting, from the date of incorporation of each of the Company and
such subsidiary to the date hereof.




          (s) The Company has not taken, nor will it take, directly or indirectly, any action
designed to stabilize or manipulate the price of the Common Stock or any security of the
Company to facilitate the sale or resale of the Common Shares.




          (t) Neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf, has engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D promulgated under the Securities Act) in connection with the
offer or sale of the Common Shares.




          (u) There are no brokers or finders entitled to compensation in connection with the
sale of the Common Shares.




          (v) The Company is eligible to register the Common Stock for resale with the Commission
under Form S-3 promulgated under the Securities Act.



          5. Covenants of the Investor.




          (a) Except as required by law, the Investor agrees to keep confidential all material
non-public information received regarding the Company in connection with this Stock
Purchase.




          (b) The Investor covenants with the Company that at all times during which it holds any
of the Common Shares, it shall materially comply with all applicable federal and state
securities laws, the rules and regulations of the NASDAQ Global Market, or any other market
or exchange on which the Company’s securities are traded, and any applicable state law
relating to the governance of corporations, pertaining to the amount of equity ownership of
the Company that the Investor may beneficially own, the aggregate voting rights the Investor
may have in respect to all other stockholders of the Company, and the effective change in
control of the Company.




          (c) The Investor will not engage in any activity that would jeopardize the status of
the Stock Purchase as an exempt transaction under the Securities Act or under the laws of
any state in which the Stock Purchase is made.




          (d) The Investor acknowledges that the representations, warranties, agreements,
undertakings and acknowledgments are made by the Investor with the intent
that they be relied upon by the Company in determining whether to issue the Common
Shares.



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          6. Covenants of the Company. The Company covenants with the Investor that:




          (a) The Company will apply the net proceeds from the sale of the Common Shares for
research and development efforts, capital expenditures to build-out its existing facilities,
and general corporate purposes and working capital.




          (b) The Company will, so long as the Investor shall be the holder of any Common Shares,
furnish to the Investor, as soon as practicable, but no later than as required to be in
compliance with the Commission, after the end of each fiscal year, an annual report with
respect to such year (including financial statements audited by independent public
accountants) and, as soon as practicable, but no later than as required to be in compliance
with the Commission, after the end of each quarterly period (other than the last quarterly
period) of each fiscal year, a statement (which need not be audited) of the results of
operations of the Company for such period, and, to the extent not otherwise furnished,
promptly upon the filing thereof, (i) copies of all reports filed by the Company with the
Commission pursuant to the Exchange Act and (ii) any report or document distributed by the
Company to its stockholders generally. The parties acknowledge and agree that the filing of
such reports on the Commissions Electronic Data Gathering, Analysis Retrieval system shall
satisfy the obligations set forth herein.




          (c) Neither the Company nor any of its officers, directors or employees will engage in
any activity that would jeopardize the status of the sale of the Common Shares as an exempt
transaction under the Securities Act or under the laws of any state in which the offering is
made.




          (d) The Company acknowledges that the representations, warranties, agreements,
undertakings and acknowledgments are made by the Company with the intent that they be relied
upon by the Investor in determining whether to subscribe for the Common Shares.




          (e) Except as required by law, the Company shall not issue any press release or file
any Report with the Commission discussing any relationship between the Company and an
Investor Party (as defined in Section 8(a)) without the prior approval of the
Investor, which approval shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, the Company shall be permitted to issue such press releases or file such Reports
with the Commission without obtaining the consent of the Investor if such press release or
Report is required by law or the applicable rules or regulations of the NASDAQ Global Market
or such Report contains disclosure which has been previously approved by Investor for
publication in connection with a previous press release or Report. No later than the trading
day immediately following the date hereof, the Company shall issue a press release
disclosing the transactions contemplated by this Subscription Agreement. No later than the
fourth trading day following the date hereof, the Company will file a Current Report on Form
8-K describing the transactions
contemplated by this Subscription Agreement and attaching the press release described
in the foregoing sentence. Nothing set forth herein shall preclude the Company from
referencing Investor as a purchaser of the Common Shares during conference calls with
brokerage firm analysts, as part of investor presentations or in similar forum so long as
the substance of such discussions is consistent with the disclosure set forth in such
previously-approved press releases or Reports.



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          7. Registration and Listing of Shares. The Company hereby agrees with the holder
that:




          (a) (i)The Company shall file or cause to be filed, no later than thirty (30) days
after the Closing of the Stock Purchase (the “Filing Deadline”), a registration
statement under the Securities Act (a “Registration Statement”), to permit the
resale by a holder thereof of the Common Shares, together with any shares of capital stock
issued or issuable, from time to time, upon any reclassification, share combination, share
subdivision, stock split, share dividend or similar transaction or event or otherwise as a
distribution on, in exchange for or with respect to any of the foregoing (the
“Registrable Securities”). In the event that the Company is unable to file such
Registration Statement by the Filing Deadline due to a hardship, the Company shall have two
consecutive opportunities to request consent by Investor to grant a five (5) business day
extension, each of which will not be unreasonably withheld by the Investor.




          (ii) The Company shall use its commercially reasonable efforts to cause the
Registration Statement referred to in clause (i) above to be declared effective by
the Commission as soon as reasonably practicable and shall cause such Registration
Statement to remain effective until such time as all Registrable Securities have
been sold or are otherwise freely tradable without registration under the Securities
Act (the “Expiration Date”).




          (b) In connection with the foregoing, the Company will:




          (i) Prepare and file with the Commission a Registration Statement with respect
to the Registrable Securities and use its best efforts to cause such Registration
Statement to become and remain effective.




          (ii) Prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as may
be necessary to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the sale or other disposition of
the Registrable Securities whenever the holder of such securities shall desire to
sell the same.




          (iii) Furnish to the holder such number of copies of a summary prospectus or
other prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents, as the holder may
reasonably request in order to facilitate the sale of the Registrable Securities
owned by the holder.



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          (iv) Register or qualify the Registrable Securities under applicable blue sky
laws, and do such other reasonable acts and things as may be required in
jurisdictions to which such blue sky laws apply; provided, however,
that the Company shall not be obligated to file any general consent to service of
process or qualify as a foreign corporation in any jurisdiction.




          (v) Furnish at the request of the holder, on the date that the Registration
Statement with respect to the Registrable Securities becomes effective, an opinion,
dated as of such date, of the independent counsel representing the Company for the
purposes of such registration, addressed to the Investor stating that such
Registration Statement has become effective under the Securities Act and that, to
the best knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act.




          (vi) Use reasonable best efforts to prevent the issuance of any stop order or
other order suspending the effectiveness of the Registration Statement and, if such
an order is issued, to obtain the withdrawal thereof at the earliest possible time
and to notify the Investor of the issuance of such order and the resolution thereof.




          (vii) Furnish to the Investor, two trading days after the date that any
Registration Statement becomes effective after a stop order has been lifted, a
letter, dated such date, of outside counsel representing the Company, addressed to
the Investor, confirming the effectiveness of such Registration Statement and, to
the knowledge of such counsel, the absence of any stop order.




          (viii) Provide to the Investor and its representatives, if requested, the
opportunity to conduct a reasonable inquiry of the Company’s financial and other
records during normal business hours and make available its officers, directors and
employees for questions regarding information which the Investor may reasonably
request in order to fulfill any due diligence obligation on its part; provided that
in the case of this clause (viii), the Company shall not be required to provide, and
shall not provide, the Investor with material, non-public information unless the
Investor agrees to receive such information and enters into an agreement to keep
such material, nonpublic information confidential and refrain from trading in any
Company security for so long as such information remains material, nonpublic
information.




          (c) In addition to the Company’s obligations under Section 15 hereof, all of the
expenses incurred in complying with the foregoing, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the FINRA),
printing expenses, fees and disbursements of counsel for the Company, expenses of any
special audits incident to or required by any such registration and expenses of complying
with the securities or blue sky laws or any jurisdictions shall be paid by the Company.



12









 






          (d) The Company shall also cause such Common Shares to be listed on the NASDAQ Global
Market or such other principal national securities exchange on which the shares of Common
Stock are then listed.




          (e) The Investor shall furnish to the Company such information regarding itself, the
Common Shares held by it and the intended method of disposition of the Common Shares held by
it as shall be reasonably required to effect the registration of the Registrable Securities
and shall execute such documents in connection with such registration as the Company may
reasonably request. The Investor shall cooperate with the Company as reasonably requested
by the Company in connection with the preparation and filing of the Registration Statement
hereunder.




          (f) The Company shall furnish to the Investor, not less than three days prior to the
filing of a Registration Statement or any related prospectus or amendment or supplement
thereto (including any document that would be incorporated or deemed to be incorporated
therein by reference), copies of all such documents proposed to be filed, which documents
will be subject to the review of the Investor. The Company shall reflect in each such
document when so filed with the Commission such comments relating to the Investor and its
plan of distribution of the Registrable Securities as the Investor may reasonable propose.




          (g) (i) Each document filed or to be filed with the Commission pursuant to the Exchange
Act and incorporated by reference in any Registration Statement complied or will comply when
so filed in all material respects with the Exchange Act, (ii) each part of each Registration
Statement, when such part shall become effective, will not contain, and each such part, as
amended or supplemented, if applicable, will 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 not misleading, (iii) each Registration Statement will 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 not misleading, (iv) each Registration
Statement and prospectus, as may be amended or supplemented, will comply in all material
respects with the Securities Act, and (v) each prospectus, as may be amended or
supplemented, will not, at the time of each sale of the Common Shares by the Investor,
contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth in this
paragraph will not apply to statements or omissions in any Registration Statement or
prospectus based upon information relating to the Investor furnished to the Company in
writing by the Investor expressly for use therein.




          (h) If the Company, at any time prior to the effectiveness of the Registration
Statement, proposes to register any Common Stock under the Securities Act whether or not for
sale for its own account, and the registration form to be used may be used for the
registration of the Registrable Securities, it will give prompt written notice to the
Investor of the Company’s intention to effect such a registration and include in such
registration all Registrable Securities with respect to which the Company has received
written notice from the Investor for inclusion therein within 10 days after the date of
the Company’s notice; provided, however, that if any such registration shall be in
connection with an underwritten public offering, and if the managing underwriters shall
advise the Company in writing that in their good faith reasonable opinion marketing
considerations require the exclusion of the Registrable Securities, then the Company shall
not be obligated to comply with the requirements of this Section 7(h).



13









 





          8. Right of First Refusal.




          (a) Subject to the terms and conditions specified in this Section 8, for the
eighteen (18) month period following the Closing Date (the “Right of First Refusal
Period”), the Company hereby grants the Investor Parties (as defined herein) a right of
first refusal with respect to future sales by the Company of its Equity (as defined below).
As used herein, the term “Investor Parties” shall mean Investor and its affiliates,
which shall consist solely of (i) Parent, (ii) any wholly-owned subsidiary of Parent, and
(iii) any parent company of Parent which beneficially owns in excess of fifty percent (50%)
of the voting power of Parent’s common equity but, except for purposes of
Section 8(c) hereof, shall exclude any competitor of the Company (but all other
entities described in clauses (i) — (iii) in the foregoing sentence would remain Investor
Parties notwithstanding the presence of such excluded competitor). The Investor shall be
entitled to apportion or assign the right of first refusal hereby granted it among itself
and the other Investor Parties in such proportions as the Investor deems appropriate. In the
event of any such assignment, the recipient shall be given full rights of the Investor
hereunder, and shall be deemed to hold all Common Shares held by the Investor for purposes
of all calculations hereunder. Each time during the Right of First Refusal Period that the
Company proposes to offer for cash any shares of, or securities convertible into or
exchangeable or exercisable for any shares of, any class of its capital stock
(“Equity”) the Company shall first make an offering of such Equity to the Investor
in accordance with the following provisions.




          (b) The Company shall deliver a notice in accordance with Section 13 (the
“Notice”) to the Investor stating (i) its bona fide intention to offer such Equity,
(ii) the person(s) to whom the Equity is being offered (the “Offeree”), (iii) the
amount of such Equity to be offered, and (iv) the price and terms upon which it proposes to
offer such Equity.




          (c) (i) In the event the Offeree is a competitor of any of the Investor Parties at the
time of receipt of the Notice (a “Competitor”), by written notification received by
the Company within ten (10) business days after receipt of the Notice, the Investor may
elect to purchase or obtain, at the price and on the terms specified in the Notice, the
entire Equity offering (in which case the Offeree would not be entitled to purchase any
Equity) or some portion of the Equity offering (in which case the Offeree would be entitled
to purchase no more than the remainder of the Equity offering); and (ii) in the event the
Offeree is not a Competitor, by written notification received by the Company within ten (10)
business days after receipt of the Notice, the Investor may elect to purchase or obtain, at
the price and on the terms specified in the Notice such additional Equity up to an amount
that enables the Investor to have a Pro Rata Interest immediately
after consummation of the sale to the Offeree described in the Notice that equals the
Investor’s Initial Pro Rata Interest. For purposes of this Section 8, “Pro Rata
Interest” shall mean the proportion that the number of shares of Common Stock beneficially
owned by the Investor (including the Investor’s Parties) bears at the time of determination
to the total number of shares of Common Stock outstanding at such time (assuming full
conversion and exercise of all convertible and exercisable securities outstanding at such
time); provided, however, that to the extent the Company issues Equity which provides for
supervoting rights, for purposes of determining compliance with this Section 8(c),
the Investor’s Pro Rata Interest shall be calculated based upon the Pro Rata Interest of
voting power represented by the Equity used in such calculations. For purposes of this
Section 8, “Initial Pro Rata Interest” shall mean the Investor’s Pro Rata Interest
immediately after consummation of the Stock Purchase.



14









 






          (d) If the Investor elects not to exercise the rights to which it is entitled pursuant
to Section 8(c), the Company may, during the sixty (60) day period following the
expiration of the period provided in Section 8(c) hereof, offer the remaining
unsubscribed portion of such Equity at a price not less than, and upon terms no more
favorable than those specified in the Notice. If the Company does not enter into an
agreement for the sale of the Equity within such period, or if such agreement is not
consummated within thirty (30) days of the execution thereof, the right provided hereunder
shall be deemed to be revived and such Equity shall not be offered unless first reoffered to
the Investor in accordance herewith.




          (e) The right of first refusal in this Section 8 shall not be applicable to (i) shares
of Common Stock issued, or shares of Common Stock issued or issuable upon exercise of
options, to employees, directors, consultants and other service providers to the Company for
the primary purpose of soliciting or retaining their services pursuant to plans or
agreements approved by the Company’s Board of Directors; (ii) shares of Common Stock issued
pursuant to the conversion or exercise of convertible or exercisable securities outstanding
as of the date hereof; (iii) shares of Common Stock issued in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise approved by the Company’s Board of Directors; or (iv) shares of Common Stock issued in connection with an underwritten public or registered direct
offering so long as (A) in the case of a registered direct offering unless Investor gives
its prior written consent otherwise, the Company and the placement agent marketing such
offering shall exclude Competitors from participation and (B) in the case of either an
underwritten public offering or a registered direct offering, the Company and the
underwriters marketing such offering shall approach the Investor and present it with a ten
(10) business day period to elect to participate therein and shall not limit the amount of
participation by Investor solely to allow for the participation of other investors except to
the extent Investor’s allowed level of participation would result in Investor’s Pro Rata
Interest immediately after consummation of such offering exceeding Investor’s Initial Pro
Rata Interest. Nothing set forth herein shall obligate the Company to increase the size of
an offering described in this Section 8(e)(iv) beyond that amount which is
determined to be in the best interests of the Company’s stockholders by the Company’s board
of directors.



15









 





          9. Indemnification.




          (a) In the event of any offer by Registration Statement with respect to any Common
Shares pursuant to the provisions hereof, the Company agrees to indemnify and hold harmless
the Investor, each underwriter, if any, of such Common Shares, and each other person, if
any, who controls such Investor or any such underwriter within the meaning of the Securities
Act, from and against any and all losses, claims, damages or liabilities (or actions in
respect thereof) which arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement under which the
Registrable Securities were registered and offered under the Securities Act or any
prospectus contained therein, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Investor, each such
underwriter, and each such controlling person for any legal or any other expenses reasonably
incurred by such Investor, such underwriter or controlling person in connection with the
investigation or defense of any such loss, claim, damage, liability or action,
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage, or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in such
Registration Statement or such prospectus in reliance upon, and in conformity with, written
information furnished to the Company by the Investor, such underwriter or such controlling
person, specifically for use in preparation thereof, provided further, that
the Company shall not file any such Registration Statement or prospectus containing
information relating to such Investor without providing the Investor with an opportunity to
review and, to the extent incorrect, correct such information.




          (b) In the event of any offer by a post-effective amendment or other Registration
Statement with respect to any Common Shares pursuant to the provisions hereof, and to the
extent permitted by applicable law, the Investor and each other person, if any, who controls
the Investor within the meaning of the Securities Act, agrees to indemnify and hold harmless
the Company, each person who controls the Company within the meaning of the Securities Act,
and each officer and director of the Company from and against any losses, claims, damages or
liabilities, joint or several, to which the Company, such controlling person or any such
officer or director may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material fact
contained in such post-effective amendment or other Registration Statement under which such
Common Shares were offered or any prospectus contained therein, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, which untrue statement
or alleged untrue statement or omission or alleged omission was made therein in reliance
upon, and in conformity with, written information furnished to the Company by such Investor
or such controlling person specifically for use in connection with the preparation thereof
(provided that the Company shall have afforded the Investor with an opportunity to review,
and to the extent incorrect, correct such information prior to the filing thereof),
and to reimburse the Company, each such controlling person and each such officer or
director for any legal or any other expenses reasonably incurred by them in connection with
investigating, or defending any such loss, claim, damage, liability or action.
Notwithstanding the foregoing or anything to the contrary contained herein, the Investor
will not be liable for any losses, claims, damages or liabilities in excess of the net
amount received by the Investor from the sale of the Common Shares.



16









 






          (c) Promptly after receipt by an indemnified party of notice of the commencement of any
action or the assertion of a claim that may be subject to indemnification hereunder, such
indemnified party, if a claim in respect thereof is to be made against an indemnifying
party, will give written notice to such indemnifying party of the commencement or assertion
thereof. Indemnification provided for under this Section 9 shall not be available to the
indemnified party if it shall fail to give such notice to the indemnifying party (if the
indemnifying party was not aware of the action) to the extent the indemnifying party was
materially prejudiced by failure to receive such notice, but the omission to give such
notice shall not relieve the indemnifying party from any liability it otherwise may have to
the indemnified party. In case any such action is brought or such assertion is made against
any indemnified party, and it notifies any indemnifying party of such commencement or
assertion, the indemnifying party will be entitled to participate in and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such indemnified party for
any legal expenses subsequently incurred by such indemnified party in connection with the
defense thereof, other than the reasonable cost of investigation, unless the representation
of such indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such action.




          (d) Except as otherwise required by law, the parties hereto agree to treat any
indemnification payments made pursuant to this Section 8 as an adjustment to the purchase
price for income tax purposes.



          10. Conditions to Obligations of Investor. The obligation of the Investor to purchase
the Common Shares at the Closing is subject to the fulfillment on or prior to the Closing Date of
the following conditions, any of which may be waived by the Investor.




          (a) Representation and Warranties Correct; Performance of Obligations. The
representations and warranties made by the Company in Section 4 hereof shall be true and
correct when made on the date hereof, and shall be true and correct, in all material
respects, on the Closing Date with the same force and effect as if they had been made on and
as of said date, except for representations and warranties made as of a specific date which
shall be true and correct, in all material respects, as of such date; and the Company shall
have performed all obligations and conditions herein required to be performed or observed by
it under this Agreement on or prior to the Closing Date.



17









 






          (b) Consents and Waivers. The Company shall have obtained any and all consents
(including all governmental or regulatory consents, approvals or authorizations required in
connection with the valid execution and delivery of this Agreement), permits and waivers
necessary for consummation of the transactions contemplated by this Agreement.




          (c) Legal Opinion. The Investor shall have received an opinion of Greenberg
Traurig, P.A., counsel to the Company, in a customary form reasonably acceptable to the
Investor.




          (d) Officer Certificate. The Investor shall have received a certificate signed
by the Company’s Chief Financial Officer to the effect that the conditions set forth in
Sections 11(a) and (b) have been satisfied.




          (e) Secretary Certificate. The Investor shall have received a certificate
signed by the Company’s Secretary to the effect that (i) no action has been taken by the
Company to further amend, modify or repeal the Company’s Restated Certificate of
Incorporation, the same being in full force and effect in the form referenced in the Exhibit
Index to the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2008
and (ii) a true, correct and complete copy of the resolutions duly adopted by the Board of
Directors of the Company at a meeting of the Board of Directors held on May 22, 2009
approving the transactions contemplated herein is attached thereto and such resolutions have
not in any way been amended, modified, revoked or rescinded, have been in full force and
effect since their adoption to and including the date of such certificate and are in full
force and effect.



          11. Conditions to Obligation of the Company. The obligation of the Company to sell
and issue the Common Shares to each Investor at the Closing is subject to the fulfillment on or
prior to the Closing Date of the following conditions, any of which may be waived by the Company.




          (a) Representation and Warranties Correct. The representations and warranties
made by the Investor in Section 3 hereof shall be true and correct when made on the date
hereof, and shall be true and correct, in all material respects, on the Closing Date with
the same force and effect as if they had been made on and as of said date, except for
representations and warranties made as of a specific date which shall be true and correct,
in all material respects, as of such date.




          (b) Consents and Waivers. The Investor shall have obtained any and all
consents (including all governmental or regulatory consents, approvals or authorizations
required in connection with the valid execution and delivery of this Agreement), permits and
waivers necessary for consummation of the transactions contemplated by this Agreement.




          (c) Payment in Full. The Company shall have received and accepted from the
Investor an executed Agreement to purchase the Common Shares and the aggregate Purchase
Price.



18









 






          (d) Officer Certificate. The Company shall have received a certificate signed
by the a duly authorized officer of the to the effect that the conditions set forth in
Sections 10(a) and (b) have been satisfied.




          (e) Secretary Certificate. The Company shall have received a certificate
signed by the Secretary of each of the Investor and Parent to the effect that a true,
correct and complete copy of the resolutions duly adopted by the Board of Directors of each
of the Investor and Parent at a meeting of each such Board approving the transactions
contemplated herein is attached thereto and such resolutions have not in any way been
amended, modified, revoked or rescinded, have been in full force and effect since their
adoption to and including the date of such certificate and are in full force and effect.



          12. Rule 144. The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder (or, if it ceases to be required to file such reports, it will, upon the
request of the Investor, make publicly available other information that fulfills the information
requirements set forth in Rule 144 (c)(1)), and it will take such further action as the Investor
may reasonably request, all to the extent required from time to time to enable the Investor to sell
the Common Shares without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of the Investor, the Company will deliver to it a written statement as to whether the
Company has complied with such information disclosure and other requirements.



          13. Notices.




          (a) Any notice required to be given or delivered to the Investor shall be sent to the
Investor’s address shown on the signature page hereof, with a copy to:




			
	                    	 	O’Melveny & Myers LLP

2765 Sand Hill Road

Menlo Park, CA 94025-7019

Attention: Timothy Curry

Fax: (650) 473-2601






          (b) Any notice required to be given or delivered to the Company shall be sent to:




			
	                    	 	Terremark Worldwide, Inc.

2 South Biscayne Boulevard

Suite 2800

Miami, Florida 33131

Attention: Chief Legal Officer

Fax: (305) 250-4244





19









 









			
	                    	 	With copy to:


Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131

Attention: Jaret L. Davis, Esq.

Fax: (305) 961-5676






          (c) All notices hereunder shall be in writing and shall be deemed to have been given
(i) when delivered personally, (ii) when received via confirmed facsimile or electronic mail
if on a business day during customary business hours (otherwise, on the next business day),
(iii) three (3) days after being deposited in the United States mail, registered, postage
prepaid, or (iv) the next business day after being delivered to a nationally recognized
overnight courier.



          14. Survival of Representations and Warranties; Indemnity. Unless otherwise noted
herein, all representations and warranties hereunder shall survive for a period equal to twelve
(12) months after execution of this Subscription Agreement and delivery of the Common Shares. All
covenants and agreements shall survive until performed. The Company shall indemnify, defend and
hold harmless the Investor and each of its agents, partners, members, officers, directors,
representatives, or affiliates (collectively, the “Investor Indemnitees”) against any and
all losses, liabilities, claims and expenses, including reasonable attorneys’ fees
(“Losses”), sustained by Investor Indemnities resulting from, arising out of, or connected
with any material inaccuracy in, material breach of, or nonfulfillment in any material way of any
representation, warranty, covenant or agreement made by or other obligation of the Company
contained in this Agreement or in any document delivered in connection herewith; provided that the
amount of such Losses indemnified hereunder shall not exceed the Purchase Price. The Investor shall
indemnify, defend and hold harmless the Company and each of its agents, partners, members,
officers, directors, representatives, or affiliates (collectively, the “Company
Indemnitees”) against any and all Losses, sustained by the Company Indemnities resulting from,
arising out of, or connected with any material inaccuracy in, material breach of, or nonfulfillment
in any material way of any representation, warranty, covenant or agreement made by or other
obligation of the Investor contained in this Agreement or in any document delivered in connection
herewith. Except as otherwise required by law, the parties hereto agree to treat any
indemnification payments made pursuant to this Section 14 as an adjustment to the purchase price
for income tax purposes.



          15. Expenses. The Company will pay all expenses incurred in connection with the
transactions contemplated by this Subscription Agreement, including, but not limited to, reasonable
legal fees of counsel to Investor in connection with the Stock Purchase. Notwithstanding the
foregoing, the Company’s obligation to pay legal fees hereunder shall be capped at $20,000.



          16. Governing Law. This Subscription Agreement and the rights and obligations of the
parties shall be governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed wholly within that State.



20









 





     IN WITNESS WHEREOF, the undersigned have executed this Subscription Agreement for the below
described Common Shares on the dates set forth below:





The terms of the foregoing including
the subscription described therein
are agreed to and accepted on this 25th day of May, 2009:



	 	 	 	 	 
	COMPANY:



Terremark Worldwide, Inc.


 	 
	By:  	/s/ Jose Segrera
 	 
	 	Print Name:  	Jose Segrera 	 
	 	Title:  	Chief Financial Officer and EVP


	 	Address:	Terremark Worldwide, Inc.

2 South Biscayne Boulevard

Suite 2800

Miami, Florida 33131 	 
	 






The terms of the foregoing including the
subscription described therein are
agreed to on this 25th day of May, 2009:






	 	 	 	 	 
	INVESTOR: 



VMware Bermuda Limited


 	 
	By:  	
/s/ Ismail Azeri
 	 
	 	Print Name:  	Ismail Azeri 	 
	 	Title:  	Director — Corporate Development


	 	Address:	c/o VMware, Inc.

3401 Hillview Ave

Palo Alto, CA 94304 USA

Attention:                               

Fax:                                	 
	 









21









 








EXHIBIT A




ACCREDITED INVESTOR




I am an accredited investor because I am:





	 	(1)	 	Either (a) a bank as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended (the “Act”), or a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary
capacity, (b) any broker or dealer registered pursuant to Section 15 of the Common
Shares Exchange Act of 1934; (c) an insurance company as defined in Section 2(13) of
the Act, (d) an investment company registered under the Investment Company Act of 1940
or a business development company as defined in Section 2(a)(48) of that act, (e) a
Small Business Investment Company licensed by the U.S. Small Business Administration
under Section 301(c) or 301(d) of the Small Business Investment Act of 1958, (f) an
employee benefit plan within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such act, which plan fiduciary is either a bank, savings
and loan association, insurance company or registered investment advisor, or if the
employee benefit plan has total assets in excess of $5,000,000 or if a self-directed
plan, with investment decisions made solely by persons that are accredited investors,
or (g) an employee benefit plan established and maintained by a state government and
their political subdivisions and agencies if the employee benefit plan has assets in
excess of $5,000,000;
	 
	 	(2)	 	A private business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940;
	 
	 	(3)	 	Any organization described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (“Code”), a corporation, Massachusetts or similar business
trust, or a partnership not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
	 
	 	(4)	 	A natural person whose individual net worth, or joint net worth with spouse,
exceeds $1,000,000 at the time of purchase;
	 
	 	(5)	 	A natural person who had an individual income in excess of $200,000 in each of
the two most recent years or joint income with that person’s spouse in excess of
$300,000 in each of those years and who reasonably expects reaching the same income
level in the current year;
	 
	 	(6)	 	Any trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is directed by a
sophisticated person as described in Regulation 230.506 (b)(2)(ii); or
	 
	 	(7)	 	An entity in which each of the equity owners of such entity certifies that he
meets the qualifications set forth in either (1), (2), (3), (4), (5) or (6) above.