11,500,000 SHARES
UNIVISION COMMUNICATIONS INC.
CLASS A COMMON STOCK (PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
October __, 1998
October __, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇▇ Sachs International
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
Certain stockholders of Univision Communications Inc., a Delaware
corporation (the "COMPANY"), named in Schedule I hereto (the "SELLING
STOCKHOLDERS") severally propose to sell to the several Underwriters (as defined
below), an aggregate of 8,917,582 issued and outstanding shares of the Class A
Common Stock, par value $.01 per share, of the Company (the "FIRM COMMON
SHARES"), and warrants (the "FIRM WARRANTS") immediately exercisable for
2,582,418 shares of Common Stock (the "FIRM WARRANT SHARES"), each Selling
Stockholder selling the amount of Firm Common Shares or Firm Warrants set forth
opposite such Selling Stockholder's name in Schedule I hereto.
The Selling Stockholders also severally propose to sell to the
several U.S. Underwriters additional warrants (the "ADDITIONAL WARRANTS")
immediately exercisable for up to an additional 1,725,000 shares of the Class A
Common Stock, par value $.01 per share (the "ADDITIONAL SHARES"), if and to the
extent that the U.S. Representatives shall have determined to exercise, on
behalf of the U.S. Underwriters, the right to purchase such shares of common
stock granted to the U.S. Underwriters in Section 3 hereof. The Firm Common
Shares and the Firm Warrant Shares are hereinafter collectively referred to as
the "FIRM SHARES". The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "SHARES". The shares of Class A Common Stock,
par value $.01 per share, of the Company to be outstanding after giving effect
to the sales contemplated hereby are hereinafter referred to as the "COMMON
STOCK". The Firm Common Shares and the Firm Warrants are hereinafter referred
to
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collectively as the "FIRM SECURITIES." The Firm Warrants and the Additional
Warrants are hereinafter referred to collectively as the "WARRANTS".
It is understood that, subject to the conditions hereinafter stated,
10,350,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule II hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 1,150,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold to the
several International Underwriters named in Schedule III hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and ▇▇▇▇▇▇▇, Sachs & Co.
shall act as representatives (the "U.S. REPRESENTATIVES") of the several U.S.
Underwriters, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited, ▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇ International and ▇▇▇▇▇▇▇ Sachs International shall act as
representatives (the "INTERNATIONAL REPRESENTATIVES") of the several
International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "UNDERWRITERS".
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement relating to the Shares. The
registration statement contains two prospectuses to be used in connection with
the offering and sale of the Shares: the U.S. prospectus, to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside and inside front cover pages and the inclusion in the international
prospectus of a section entitled "Certain United States Tax Consequences to
Non-United States Holders." The registration statement as amended at the time
it becomes effective, including the information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is
hereinafter referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and
the international prospectus in the respective forms first used to confirm sales
of Shares are hereinafter collectively referred to as the "PROSPECTUS". If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement
filed after the effectiveness of this Agreement will become effective no
later than 10:00 P.M., New York City time, on the date of this Agreement;
and no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or threatened by the Commission.
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(b) (i) Each document, if any, filed or to be filed pursuant to
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act; (ii) the Registration
Statement (other than any Rule 462(b) Registration Statement to be filed by
the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, 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) the Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material respects with
the Securities Act, (iv) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement and any amendments thereto, when they become
effective (A) 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 and (B) will comply in all
material respects with the Securities Act and (v) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act, and did not contain 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 light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in any preliminary prospectus based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and its corporate subsidiaries has been
duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the corporate
power and authority to carry on its business as it is currently being
conducted and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where
the failure to be so qualified would not have a material adverse effect on
the business, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole. Each of the Company's subsidiaries
that is a partnership is a duly formed general or limited partnership, as
the case may be, and is validly existing as a general or limited
partnership, as the case may be, under the laws of the state of its
organization, with full partnership power and authority to carry on its
business as it is currently being conducted and to own, lease and operate
its properties, and each is duly qualified and is in good standing as a
foreign partnership authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property requires
such qualification,
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except where the failure to be so qualified would not have a material
adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries relating to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of the Company or any of its subsidiaries, except as
otherwise disclosed in the Registration Statement.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights. The Firm Warrants and
Additional Warrants to be sold by the Selling Stockholders have been duly
authorized and validly issued and are not subject to any preemptive or
similar rights. The Firm Warrant Shares and Additional Shares have been
duly authorized and, when issued and delivered to the Underwriters against
payment of the Warrant Exercise Price therefor in accordance with the terms
of this Agreement, will be validly issued and fully paid, non-assessable
and not subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's corporate subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable, and all of the outstanding
partnership interests in each of the Company's subsidiaries which is a
partnership have been duly authorized by such partnership, and all of such
shares of capital stock and partnership interests are owned directly or
indirectly of record by the Company, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature,
except for those arising under the Bank Facility (as defined in the
Prospectus).
(h) The authorized capital stock of the Company and the Warrants
conform as to legal matters to the description thereof contained in the
Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or other governing document or in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound, which violation or default would
have a material adverse affect on the business, financial condition or
results of operations of the Company and its subsidiaries taken as a whole.
(j) The execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby (including,
without limitation, the purchase and exercise by the Underwriters of the
Firm Warrants and Additional Warrants) will not (i) require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under
the Securities Act and the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws or other
governing documents of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or
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instrument (including, without limitation, the Warrants) to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or their respective property is bound, except
for such conflicts, breaches or defaults which, singly or in the
aggregate, would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property or (iv)
result in the suspension, termination or revocation of any Authorization
(as defined below) of the Company or any of its subsidiaries or any
other impairment of the rights of the holder of any such Authorization.
(k) Except as otherwise set forth in the Prospectus, there are no
legal or governmental proceedings pending, or to the best of the Company's
knowledge, threatened or contemplated, to which the Company or any of its
subsidiaries is or could be a party or to which any of their respective
property is or could be subject that are required to be described in the
Registration Statement or the Prospectus and are not so described; nor are
there any contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not so described or filed or
incorporated by reference therein as required or otherwise permitted.
(l) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business, except where the failure to have any such Authorization or to
make any such filing or notice would not, singly or in the aggregate, have
a material adverse effect on the business, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole. Each
such Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the authorities
and governing bodies having jurisdiction with respect thereto; and no event
has occurred (including, without limitation, the receipt of any notice from
any authority or governing body) which allows or, after notice or lapse of
time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the holder of any
such Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a material adverse effect on
the business, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole.
(m) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), any provisions of the Employee Retirement Income Security Act of
1974, as amended, or any provisions of the Foreign Corrupt Practices Act or
the rules and
5
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse effect on the
business, financial condition or results of operation of the Company and
its subsidiaries, taken as a whole.
(n) There are no costs or liabilities associated with any capital
or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to third
parties under Environmental Laws which would, singly or in the aggregate,
have a material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole.
(o) This Agreement has been duly authorized, executed and delivered
by the Company.
(p) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Securities
Act.
(q) The consolidated financial statements included in or
incorporated by reference into the Registration Statement and the
Prospectus (and any amendment or supplement thereto), together with related
schedules and notes, present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and
its subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be
stated therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company. The pro forma financial
information of the Company and its subsidiaries set forth in the
Registration Statement and the Prospectus (and any supplement or amendment
thereto) has been prepared on a basis consistent with the historical
financial statements of the Company and its subsidiaries, gives effect to
the assumptions used in the preparation thereof on a reasonable basis and
in good faith and present fairly in all material respects the historical
transactions described in the Registration Statement and the Prospectus.
(r) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(s) Except as set forth in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
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(t) Since the respective dates as of which information is given in
the Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii)
there has not been any material adverse change or any development involving
a prospective material adverse change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither
the Company nor any of its subsidiaries has incurred any material liability
or obligation, direct or contingent.
(u) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(v) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act has indicated to the Company that it is considering (i) the
downgrading, suspension or withdrawal of, or any review for a possible
change that does not indicate the direction of the possible change in, any
rating assigned to the Company or any securities of the Company or (ii) any
change in the outlook for any rating of the Company or any securities of
the Company.
(w) Except as otherwise set forth in the Prospectus or such as are
not material to the business, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, the Company and each
of its subsidiaries has good and marketable title, free and clear of all
liens, claims, encumbrances and restrictions (except liens, claims,
encumbrances or restrictions arising under the Bank Facility and liens for
taxes not yet due and payable), to all property and assets described in the
Registration Statement as being owned by it. All leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder, which might result in any
material adverse change in the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, and the
Company and its subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the Company
or such subsidiary.
(x) The Company and each of its subsidiaries maintains insurance of
the types and in the amounts generally deemed adequate for its business.
(y) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any state or local labor relations board,
and no significant grievance or more significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Company or any of its subsidiaries or, to the best knowledge of
the Company, threatened against any of them, and (ii) no significant
strike, labor dispute, slowdown or stoppage pending against the Company or
any of its subsidiaries or, to the best knowledge of the Company,
threatened against it or any of its subsidiaries except for such actions
specified in clause (i) or (ii) above, which, singly or in the aggregate
could not reasonably
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be expected to have a material adverse effect on the business, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole.
(z) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(aa) All material tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided.
(bb) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(cc) The Company has filed a registration statement pursuant to
Section 12(b) of the Exchange Act to register the Common Stock and has
listed the Shares, subject to official notice of issuance, on the New York
Stock Exchange.
(dd) The Company and its subsidiaries possess, or possess the right
to use, the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "INTELLECTUAL
PROPERTY") presently employed by them in connection with the businesses now
operated by them, and neither the Company nor any of the its subsidiaries
has received any notice of infringement of or conflict with asserted rights
of others with respect to the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would result
in a material adverse change in the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole. The use of such Intellectual Property in connection with the
business and operations of the Company and its subsidiaries does not, to
the Company's knowledge, infringe in any material respect on the rights of
any person.
(ee) The Firm Warrants and the Additional Warrants are duly
authorized, executed and delivered by the Company and constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law. The
sale of the Warrants to the Underwriters pursuant to the terms of this
Agreement does not
8
violate any provision thereof and upon such sale the Warrants will be fully
exercisable by the Underwriters as contemplated herein.
(ff) Upon the Underwriters' purchase of the Firm Warrants and any
Additional Warrants and payment to the Company of the Warrant Exercise
Price pursuant to this Agreement, all of the requirements (whether under
the Warrants or otherwise) with respect to the Underwriters' exercise of
the Firm Warrants and any Additional Warrants for the Firm Warrant Shares
and Additional Shares, respectively, will be satisfied, and the Company
will be unconditionally obligated to immediately issue duly and validly
authorized and issued, fully paid and nonassessable shares of Common Stock
in respect thereof.
(gg) The Company is, and upon consummation of the offering and sale
of the Shares the Company will be, in compliance with Section 310(b) of the
Communications Act of 1934, as amended, and the rules, regulations, written
policies and decisions of the FCC (collectively, the "COMMUNICATIONS ACT"),
with respect to the collective equity interests in the Company owned or
voted, directly or indirectly, by aliens, entities organized under the laws
of foreign governments, or the representatives of either.
(hh) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders represents and warrants to and agrees with each
of the Underwriters that:
(a) Such Selling Stockholder is the owner of the Firm Common Shares
and Firm Warrants to be sold by such Selling Stockholder pursuant to this
Agreement and has, and on the Closing Date will have, good and clear title
to such Firm Common Shares and Firm Warrants free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever, except for restrictions on transfer, encumbrances or claims
pursuant to the Custody Agreement and Power of Attorney (each as defined
below).
(b) Such Selling Stockholder has, and on the Closing Date will
have, all necessary organizational power and authority to enter into this
Agreement, the Custody Agreement signed by such Selling Stockholder and the
Company, as Custodian, relating to the deposit of the Firm Common Shares
and the Warrants to be sold by such Selling Stockholder (the "CUSTODY
AGREEMENT") and the Power of Attorney of such Selling Stockholder
appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein,
relating to the transactions contemplated hereby and by the Registration
Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell,
assign, transfer and deliver the Firm Common Shares and Warrants to be sold
by such Selling Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder.
9
(d) The Custody Agreement and Power of Attorney of such Selling
Stockholder has been duly executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors' rights generally, and by general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
(e) Upon delivery of and payment for the Firm Common Shares and
Warrants to be sold by such Selling Stockholder pursuant to this Agreement,
good and clear title to such Firm Common Shares and Warrants will pass to
the Underwriters, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever.
(f) (i) The Registration Statement, when it became effective, did
not contain and, 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, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not 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 2(f) apply only to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Selling Stockholder furnished to the Company in
writing by such Selling Stockholder expressly for use therein.
(g) The execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of such Selling Stockholder by
or on behalf of such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and the consummation
of the transactions contemplated hereby and thereby will not (i) require
any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states), (ii)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter, bylaws or other governing documents of
such Selling Stockholder, any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which such Selling Stockholder is a party
or by which such Selling Stockholder or any property of such Selling
Stockholder is bound, except for such conflicts, breaches or defaults as
would not have a material adverse effect on the Shares or the transactions
contemplated hereby or (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling
Stockholder or any property of such Selling Stockholder.
(h) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares pursuant to the distribution contemplated by this Agreement, and
other than as permitted by
10
the Securities Act, such Selling Stockholder has not distributed and will
not distribute any prospectus or other offering material in connection with
the offering and sale of the Shares.
(i) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by such
Selling Stockholder to the Underwriters as to the matters covered thereby.
3. AGREEMENTS TO SELL AND PURCHASE. Each Selling Stockholder,
severally and not jointly, hereby agrees to sell to the several Underwriters,
and each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from such Selling Stockholder at
U.S.$______ a share (the "SHARE PURCHASE PRICE") the number of Firm Common
Shares, and a price per Firm Warrant equal to the Share Purchase Price less
$0.06439 (the "WARRANT PURCHASE PRICE") the number of Firm Warrants (in each
case subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Firm Common Shares and Firm Warrants to be sold by such Selling
Stockholder as the number of Firm Shares set forth in Schedules II and III
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each of the Selling
Stockholders agrees to sell to the U.S. Underwriters the number of Additional
Warrants set forth opposite its name on Schedule I hereto, and the U.S.
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 1,725,000 Additional Warrants at the Warrant Purchase Price. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Warrants to be purchased by the U.S. Underwriters and
the date on which such Additional Warrants are to be purchased. Such date may
be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor later than ten business days after the date of such notice.
Additional Warrants may be purchased as provided in Section 5 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. If any Additional Warrants are to be purchased, each U.S.
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Warrants (subject to such adjustments to eliminate fractional shares
as the U.S. Representatives may determine) that bears the same proportion to the
total number of Additional Warrants to be purchased as the number of U.S. Firm
Shares set forth in Schedule II hereto opposite the name of such U.S.
Underwriter bears to the total number of U.S. Firm Shares.
The Company and each Selling Stockholder hereby agrees that, without
the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the
11
Company of shares of Common Stock upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (C) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of
the Shares, (D) the transfer by such stockholder of shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common
Stock to one or more affiliates or one or more members of such stockholder's
immediate family, or a trust, the sole beneficiaries of which are members of
such stockholder's immediate family, if the transferee agrees in writing to
be bound by the terms of this paragraph, (E) the sale of shares of Common
Stock pursuant to the cashless "net exercise" provisions of any option or
warrant outstanding on the date of this Agreement, (F) grants of stock
options by the Company pursuant to the Company's stock option plan in
existence on the date of this Agreement, and (G) issuances of shares of
Common Stock by the Company to its employees under its 401(k) plans in
existence on the date of this Agreement. In addition, each Selling
Stockholder agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus, make any demand for,
or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable
for Common Stock. Prior to or concurrently with the execution of this
Agreement, the Company shall deliver, or with respect to the Stockholders
listed on Annex II shall use its best efforts to deliver, an agreement
executed by (i) each of the directors, alternate directors and executive
officers of the Company named in the Prospectus and (ii) each stockholder
listed on Annex I and Annex II hereto, to the effect that such person will
not, during the period commencing on the date such person signs such
agreement and ending 90 days after the date of the Prospectus, without the
prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, on behalf of the
Underwriters, (A) engage in any of the transactions described in the first
sentence of this paragraph (subject to the qualifications thereto described
in the second sentence of this paragraph) or (B) make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock.
4. TERMS OF PUBLIC OFFERING. The Company and the Selling
Stockholders are advised by you that the Underwriters propose to make a public
offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Company and the Selling Stockholders are further
advised by you that the Shares are to be offered to the public initially at
U.S.$_________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$______ a share under the Public Offering Price, and that any Underwriter
may allow, and such dealers may reallow, a concession, not in excess of
U.S.$_____ a share, to any Underwriter or to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Securities to be
sold by each Selling Stockholder shall be made to such Selling Stockholder in
Federal or other funds immediately available in New York City against delivery
of such Firm Securities for the respective accounts of the several Underwriters
at 10:00 a.m., New York City time, on October __, 1998, or at such other time on
the same or such other date, not later than _________, 1998, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE".
Payment for any Additional Warrants to be sold by each Selling
Stockholder shall be made to such Selling Stockholder in Federal or other funds
immediately available in New York City against delivery of such Additional
Warrants for the respective accounts of the several U.S. Underwriters at 10:00
a.m., New York City time, on the date specified in the notice described in
Section 3 or at such other time on the same or on such other date, in any event
not later than _______, 1998, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "OPTION CLOSING DATE".
On the Closing Date and any Option Closing Date, simultaneously with
(i) the purchase by the Underwriters of Firm Warrants or Additional Warrants and
(ii) the payment by the Underwriters to the Company of the applicable Warrant
Exercise Price, the Underwriters will be deemed to have exercised such Firm
Warrants or Additional Warrants and the Company will immediately issue to the
Underwriters the related Firm Warrant Shares or Additional Shares, as the case
may be.
12
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the applicable Purchase Price therefor. Notwithstanding the
foregoing, delivery of the Shares may be effected on the Closing Date or the
Option Closing Date, as the case may be, through the facilities of The
Depository Trust Company (including, without limitation, through the "full fast
method") at your election upon notice to the Company.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Selling Stockholders to sell the Firm Common Shares and the Firm Warrants
to the Underwriters and the several obligations of the Underwriters to purchase
and pay for the Firm Common Shares and the Firm Warrants on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 12:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date. The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
13
(c) The Underwriters shall have received on the Closing Date an
opinion of O'Melveny & ▇▇▇▇▇ LLP, outside counsel for the Company, dated
the Closing Date, to the effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated or organized, as applicable, and each is validly
existing and in good standing under the laws of its state of
incorporation or organization, with corporate or other organizational
power to own its properties and assets and to carry on its business
as described in the Registration Statement.
(ii) The outstanding shares of the capital stock of each of
the Company's corporate subsidiaries have been duly authorized by all
necessary corporate action on the part of such corporation, are
validly issued, fully-paid and nonassessable, and are owned directly
or indirectly of record by the Company, and the outstanding
partnership interests in each subsidiary of the Company that is a
partnership have been duly authorized by such partnership and are
owned directly or indirectly of record by the Company.
(iii) The outstanding shares of the capital stock and warrants
of the Company (including the Firm Common Shares and Warrants to be
sold by the Selling Stockholders) have been duly authorized by all
necessary corporate action on the part of the Company and are validly
issued, fully paid and nonassessable. The Firm Warrant Shares and
Additional Shares have been duly authorized by all necessary
corporate action on the part of the Company and, upon payment for and
delivery of the Firm Warrant Shares and Additional Shares in
accordance with this Agreement, the Firm Warrant Shares and
Additional Shares will be validly issued, fully paid and
nonassessable.
(iv) Holders of the capital stock of the Company are not
entitled to any preemptive right to subscribe to any additional
shares of the Company's capital stock under the Company's Restated
Certificate of Incorporation or By-laws, any New York, California or
Delaware statute or regulation or any of the Filed Agreements (as
hereinafter defined).
(v) The Firm Warrants and the Additional Warrants are duly
authorized, executed and delivered by the Company and constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally, and by general principles of
equity, regardless of whether considered in a proceeding in equity or
at law.
(vi) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the
part of the Company and this Agreement has been duly executed and
delivered by the Company.
(vii) The Registration Statement has been declared effective
under the Securities Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued or threatened by the Commission.
14
(viii) The statements in the Prospectus under the captions
"Risk Factors--Potential Competition with Other Broadcasters Using
Televisa Programming," "Risk Factors--Mandatory Redemption of Class A
Common Stock," "Risk Factors--FCC Regulation," "Risk
Factors--Concentration of Share Ownership and Control of Company,"
"Certain Transactions," "Description of Capital Stock," and
"Underwriters" in the Prospectus and Item 15 of Part II of the
Registration Statement, insofar as such statements summarize the
Restated Certificate of Incorporation, By-laws, Program License
Agreements, International Program Rights Agreement, Participation
Agreement, Warrants, Registration Rights Agreement and
Indemnification Agreements (each as defined in the Registration
Statement) or the provisions of any statute or regulation referred to
therein, fairly present the information required by Form S-3.
(ix) No order, consent, permit or approval of any New York,
California, Delaware or federal governmental authority that such
counsel has, in the exercise of customary professional diligence,
recognized as applicable to the Company, its subsidiaries or
transactions of the type contemplated by this Agreement is required
on the part of the Company for the execution and delivery of, and
performance of its obligations under, this Agreement. The Company's
execution and delivery of, and performance of its obligations under,
this Agreement do not and will not (A) violate the Company's charter
or bylaws, (B) violate, breach, or result in a default under, any
existing obligation of or restriction on the Company or any of its
subsidiaries under any agreement listed as an exhibit to the
Registration Statement or to the reports incorporated by reference
therein (the "FILED AGREEMENTS"), or (C) breach or otherwise violate
any existing obligation of or restriction on the Company or any of
its subsidiaries under any order, judgment or decree of any New York,
Delaware or federal court or governmental authority binding on the
Company or its subsidiaries and which has been identified by the
Company on a certificate provided to such counsel. The execution and
delivery by the Company of, and performance of its obligations under,
this Agreement do not violate any New York, California, Delaware or
federal statute or regulation that such counsel has, in the exercise
of customary professional diligence, recognized as applicable to the
Company or any of its subsidiaries or the transactions of the type
contemplated by this Agreement, except that, such counsel expresses
no opinion regarding any federal securities laws or Blue Sky or state
securities laws except as otherwise expressly stated herein.
(x) Such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective property
is subject which is required to be described in the Registration
Statement or the Prospectus and is not so described, or of any
contract or other document of a character required to be filed as an
exhibit to the Registration Statement or incorporated by reference
therein which is not filed or incorporated by reference therein as
required.
(xi) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
15
(xii) The Registration Statement, on the date it was filed,
appeared on its face to comply in all material respects with the
requirements as to form for registration statements on Form S-3 under
the Securities Act and the related rules and regulations in effect on
the date of filing, except that such counsel need express no opinion
concerning the financial statements and other financial information
contained or incorporated by reference therein. Each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus (except for financial statements and other
financial data included therein as to which no opinion need be
expressed) on the respective dates that they were filed appeared on
their face to comply in all material respects with the requirements
as to form for reports on Form 10-K and Form 10-Q, as the case may
be.
(xiii) To the best of such counsel's knowledge, no holder
of any security of the Company has any right to require registration
of shares of Common Stock or any other security of the Company other
than as described in the Prospectus.
(xiv) The subsidiaries of the Company identified on a schedule
to such opinion hold the Federal Communications Commission ("FCC")
licenses, permits and authorizations specified on such schedule (the
"FCC LICENSES").
(xv) The FCC Licenses are in full force and effect.
(xvi) The FCC Licenses include all material FCC licenses,
permits and authorizations necessary for the Company's respective
subsidiaries identified on the above-referenced schedule to such
opinion to operate television broadcast stations of the type
indicated on the respective channels in the communities of license
listed on such schedule.
(xvii) There are no necessary material consents, approvals and
authorizations required from the FCC under the Communications Act
for the offering and sale of the Shares to occur.
(xviii) Based solely upon a review of the records in the public
reference rooms of the FCC available for inspection during the two
weeks immediately preceding the Closing Date, appropriate files of
this firm, certificates of officers or other representatives of
the Company or its subsidiaries, and an inquiry of lawyers in such
firm who have substantial responsibility for the Company's legal
matters handled by such firm, such counsel confirms that: (A) there
is no proceeding (including any rulemaking proceeding), complaint or
investigation against the Company or any of its subsidiaries or in
respect of the station licenses or any of the FCC Licenses pending or
threatened before the FCC (including any pending judicial review of
such an action by the FCC) with respect to which the outcome, if
determined adversely to the Company or any of its subsidiaries, would
have a material adverse effect on the operations of the Company and
its subsidiaries (except for proceedings affecting the television
industry generally to which neither the Company nor any of its
subsidiaries is a specific party); and (B) neither the Company nor
any of its subsidiaries has been the subject of any final adverse
order, decree or ruling of the FCC (including any notice of
forfeiture that has been paid) since the last renewal of the FCC
16
Licenses which had a material adverse effect on the operations of the
Company and its subsidiaries.
(xix) In addition, such opinion shall contain a statement to
the effect that in connection with such counsel's participation in
the preparation of the Registration Statement and the Prospectus,
they have not independently verified the accuracy, completeness or
fairness of the statements contained therein, and the limitations
inherent in the examination made by such counsel and the knowledge
available to such counsel are such that such counsel is unable to
assume, and does not assume, any responsibility for such accuracy,
completeness or fairness, except as otherwise specifically stated in
Section 6(c)(viii) above. However, on the basis of such counsel's
review and participation in conferences in connection with the
preparation of the Registration Statement and the Prospectus, and
relying as to matters of fact to a large extent upon opinions of
officers and other representatives of the Company, such counsel does
not believe that the Registration Statement as of its effective date
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, and such counsel does not
believe that the Prospectus on the date hereof contains any untrue
statement of a material fact or omits 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. Such counsel need express no opinion or belief as to
the financial statements and other financial information contained in
the Registration Statement or the Prospectus.
(d) The Underwriters shall have received on the Closing Date an
opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Selling Stockholders, dated the Closing Date, to the effect that:
(i) This Agreement, the Custody Agreement and the Power of
Attorney have been duly authorized, executed and delivered by or on
behalf of Satellite Company, L.L.C. ("Satellite Company").
(ii) The execution and delivery by each Selling Stockholder
of, and the performance by such Selling Stockholder of its
obligations under, this Agreement and the Custody Agreement and Power
of Attorney of such Selling Stockholder will not (A) require any
consent, approval, authorization or other order of, or qualification
with, any United States federal or New York State court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states or federal
securities laws), (B) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the organizational
documents of Satellite Company or any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which Satellite
Company is a party or by which any property of Satellite Company is
bound which has been identified as being material to Satellite
Company on Annex A attached to such opinion or (C) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any United States federal or New York
State governmental body or agency having jurisdiction over such
Selling Stockholder or any property of such Selling Stockholder.
17
(iii) Satellite Company has all necessary organizational power
and authority to enter into this Agreement and the Custody Agreement
and Power of Attorney of such Selling Stockholder and to sell,
transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided herein and therein.
(iv) The Custody Agreement and the Power of Attorney of each
Selling Stockholder are valid and binding agreements of such Selling
Stockholder, enforceable in accordance with its respective terms
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally, and by general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(v) Upon payment for and delivery of the Shares and Warrants
to be sold by each Selling Stockholder to the Underwriters in
accordance with this Agreement, assuming the Underwriters are
acquiring such Shares and Warrants for value in good faith without
notice of any adverse claim (as such term is used in Section 8-105 of
the Uniform Commercial Code in effect in the State of New York), the
Underwriters will acquire such Shares and Warrants free and clear of
any adverse claim.
(vi) In addition, such opinion will further state that in the
course of the preparation of the Registration Statement and the
Prospectus, such counsel participated in conferences with
representatives of the Selling Stockholders, representatives of the
Company and counsel to the Underwriters at which certain contents of
the Registration Statement and the Prospectus relating to the Selling
Stockholders and related matters were discussed, and that between the
date of the Registration Statement and the date of such opinion, such
counsel participated in additional conferences with representatives
of the Selling Stockholders, representatives of the Company and
counsel to the Underwriters at which certain contents of the
Registration Statement and the Prospectus relating to the Selling
Stockholders and related matters were discussed; although such
counsel does not pass upon or assume any responsibility for the
accuracy, completeness or fairness of any statements contained in the
Registration Statement or the Prospectus, on the basis of and subject
to the foregoing, nothing has come to such counsel's attention which
causes it to believe that the information pertaining to the Selling
Stockholders in the Registration Statement under the caption
"Principal and Selling Stockholders" does not, as of the dates of the
Registration Statement and the Prospectus, fairly and accurately
present the information set forth therein.
(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇, Angoitia, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, S.C., special Mexican
counsel for the Selling Stockholders, dated the Closing Date, to the effect
that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of Grupo Telesistema, S.A. de C.V.
("Telesistema").
(ii) The execution and delivery by Telesistema of, and the
performance by such Selling Stockholder of its obligations under,
this Agreement and the Custody
18
Agreement and Power of Attorney of such Selling Stockholder will not
(A) require any consent, approval, authorization or other order of,
or qualification with, any court or governmental body or agency of
the United Mexican States, (B) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the
organizational documents of such Selling Stockholder or any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which
any property of such Selling Stockholder is bound which has been
identified as being material to such Selling Stockholder on Annex A
to such opinion or (C) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling
Stockholder or any property of such Selling Stockholder.
(iii) Telesistema has all necessary organizational power and
authority under Mexican law to enter into this Agreement and the
Custody Agreement and Power of Attorney of such Selling Stockholder
and to sell, transfer and deliver the Shares and Warrants to be sold
by such Selling Stockholder in the manner provided herein and
therein; and
(iv) The Custody Agreement and the Power of Attorney of
Telesistema has been duly authorized, executed and delivered by
Telesistema and are valid and binding agreements of Telesistema and
will be enforceable in accordance with their respective terms by the
Mexican courts.
(f) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 6(c)(iii),
6(c)(vii), 6(c)(viii) (but only as to the statements in the Prospectus
under "Description of Capital Stock" and "Underwriters") and 6(c)(xix)
above.
With respect to Section 6(c)(xix) above, O'Melveny & ▇▇▇▇▇ LLP and
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and with respect to Section 6(d)(vi) above, Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to Section 6(d)
above, Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely upon an opinion or
opinions of counsel for any Selling Stockholders and, with respect to
factual matters and to the extent such counsel deems appropriate, upon the
representations of each Selling Stockholder contained herein and in the
Custody Agreement and Power of Attorney of such Selling Stockholder and in
other documents and instruments; PROVIDED that (A) each such counsel for
the Selling Stockholders is satisfactory to your counsel, (B) a copy of
each opinion so relied upon is delivered to you and is in form and
substance satisfactory to your counsel, (C) copies of such Custody
Agreements and Powers of Attorney and of any such other documents and
instruments shall be delivered to you and shall be in form and substance
satisfactory to your counsel and (D) Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ shall state in their opinion that they are justified in relying on
each such other opinion.
19
The opinions of O'Melveny & ▇▇▇▇▇ LLP, Fried, Frank, Harris, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Angoitia, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, S.C. described in
Sections 6(c), 6(d) and 6(e) above (and any opinions of counsel for any
Selling Stockholder referred to in the immediately preceding paragraph)
shall be rendered to the Underwriters at the request of the Company or one
or more of the Selling Stockholders, as the case may be, and shall so state
therein.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; PROVIDED that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof.
(h) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by each of the Selling
Stockholders, to the effect that the representations and warranties of such
Selling Stockholder contained in this Agreement are true and correct as of
the Closing Date and that such Selling Stockholder has complied with all of
the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(i) The "lock-up" agreements, each in the form previously agreed
upon by you, between you and certain stockholders, officers and directors
of the Company relating to sales and certain other dispositions of shares
of Common Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase
Additional Warrants hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as the U.S.
Representatives may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Warrants and the
Additional Shares and other matters related to the issuance of the Additional
Shares.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, seven signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 7(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the
20
Commission within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Shares
and to file such consents to service of process or other documents as may
be necessary in order to effect such registration or qualification;
PROVIDED, HOWEVER, that the Company shall not be required in connection
therewith to qualify as a foreign corporation in any jurisdiction in which
it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters
and transactions relating to the Prospectus, the Registration Statement,
any preliminary prospectus or the offering or sale of the Shares, in any
jurisdiction in which it is not now so subject.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending December 31, 1999 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To consent to and recognize the purchase and exercise of all of
the Firm Warrants and Additional Warrants by the Underwriters pursuant to
the terms hereof and, upon (i) payment of the purchase price for the Firm
Warrants and any Additional Warrants to the Selling Stockholders, and (ii)
receipt of a notice of assignment from the Selling Stockholders in the form
set forth in the Warrants, to deem any and all requirements for the
transfer of such Warrants to the Underwriters to be satisfied.
(g) Simultaneously with the purchase by the Underwriters from the
Selling Stockholders of, and payment for, the Firm Warrants and any
Additional Warrants and the payment to the Company of the Warrant Exercise
Price by the Underwriters, the Company will issue the Firm Warrant Shares
and any Additional Shares, respectively, all as contemplated by
21
this Agreement notwithstanding any contrary provision contained in the
Warrants, the enforcement of which the Company hereby waives.
8. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel,
the Company's accountants and counsel for the Selling Stockholders in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in
connection with the review and qualification of the offering of the Shares by
the National Association of Securities Dealers, Inc., (v) all costs and expenses
incident to listing the Shares on the NYSE, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) certain costs and expenses
relating to any "road show" undertaken in connection with the marketing of the
offering of the Shares as otherwise agreed upon by the Company and the
Representatives, and (ix) all other costs and expenses incident to the
performance of the obligations of the Company and the Selling Stockholders
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 9 entitled
"Indemnity and Contribution", and the last paragraph of Section 11 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they
may make. The Selling Stockholders will pay (directly or by reimbursement) all
fees and expenses incident to the performance of their obligations under this
Agreement which are not otherwise specifically provided for herein, including
but not limited to (i) any fees and expenses of counsel for such Selling
Stockholders, except for fees and expenses of Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, as counsel to the Selling Stockholders, and (ii) all expenses and
taxes incident to the sale and delivery of the Shares and Warrants to be sold by
such Selling Stockholders to the Underwriters hereunder. The Selling
Stockholders will also be responsible for the underwriting discounts and
commissions with respect to the shares and warrants to be sold by them.
The provisions of this Section shall not supersede or otherwise
affect any agreement that the Company and the Selling Stockholders may otherwise
have for the allocation of such expenses among themselves.
9. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
22
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by 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, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein; PROVIDED, HOWEVER, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not insure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Selling Stockholder agrees, severally and not jointly,
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with the defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments to supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, to the extent and
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) in reliance upon, and in conformity with, information
relating to such Selling Stockholder furnished to the Company in writing by
or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus.
Notwithstanding any other provision of this Section 9, the liability of each
Selling Stockholder to all such indemnified parties (as defined below) shall
not exceed the net amount received by each such Selling Stockholder (after
deducting any underwriting discount) from the sale of the Shares pursuant to
this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders, the directors
of the Company, the officers of the Company who sign the Registration Statement
and each person, if any, who controls the Company or any Selling Stockholder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact
23
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by 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,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding
and to the extent that it shall wish, the indemnifying party, jointly with any
other indemnifying party similarly notified, may assume the defense thereof,
except as provided below. In any such proceeding, any indemnified party shall
have the right to retain its own counsel and assume its own defense in such
proceeding, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Stockholders and all persons, if any, who control
any Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Stockholders and such control persons of any Selling Stockholders,
such firm shall be designated in writing by the persons named as
attorneys-in-fact for the Selling Stockholders under the Powers of Attorney.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its
24
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on claims
that are or could have been the subject matter of such proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of the indemnified party.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by each Selling Stockholder and the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Shares received by the Selling Stockholders
(after deducting any underwriting discounts and commissions but before deducting
expenses) and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares; PROVIDED
that for the purpose of this Section 9(e), the Company's benefit shall be deemed
to be the net amount received (after deducting any underwriting discounts and
commissions but before deducting expenses) by all Selling Stockholders. The
relative fault of each Selling Stockholder and the Company, on the one hand, and
the Underwriters, on the other hand, 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 Company, each such Selling Stockholder or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 9
are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(f) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by PRO RATA allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
Section 9(e). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection
25
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, (i) no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) no Selling Stockholder shall be required to
contribute any amount in excess of the amount by which the net amount received
by such Selling Stockholder (after deducting any underwriting discount) from the
sale of the Shares pursuant to this Agreement exceeds the amount of any damages
that such Selling Stockholder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged 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. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(g) The Company and the Selling Stockholders may enter into other
agreements amongst themselves with respect to the indemnity and contribution
obligations hereunder; PROVIDED that such agreements shall not affect the
indemnification and contribution obligations of the Company and the Selling
Stockholders to the several Underwriters and related indemnified parties under
this Agreement.
(h) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Stockholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter, any Selling Stockholder or any person
controlling any Selling Stockholder, or the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for
any of the Shares.
10. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly
or together with any other such event, makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
11. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
26
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule II bears to
the aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; PROVIDED that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased, and arrangements satisfactory
to you, the Company and the Selling Stockholders for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders. In any such case either you, the Company
or the Selling Stockholders shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or any
Selling Stockholder, as the case may be, to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company or any
Selling Stockholder, as the case may be, shall be unable to perform its
obligations under this Agreement, the Company or the Selling Stockholders, as
the case may be, will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder. Notwithstanding any termination of this
Agreement, the Company shall be liable for all expenses which it has agreed to
pay pursuant to Section 8 hereof.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
27
14. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
28
Very truly yours,
UNIVISION COMMUNICATIONS INC.
By:____________________________
Name:
Title:
The Selling Stockholders
named in Schedule I hereto,
acting severally
By:____________________________
Attorney-in-Fact
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
Acting severally on behalf of themselves
and the several U.S. Underwriters named
in Schedule II hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:___________________________
Name:
Title:
S-1
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇, SACHS INTERNATIONAL
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule III hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By: ____________________________
Name:
Title:
S-2
SCHEDULE I
NUMBER OF FIRM NUMBER OF
Common Shares/Warrants Additional Warrants
Selling Stockholder To Be Sold To Be Sold
Satellite Company L.L.C., a Nevada
limited liability company
Grupo Telesistema, S.A. de C.V., a
Mexican corporation
--------------- -----------------
Total........ --------------- -----------------
--------------- -----------------
SCHEDULE II
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
----------
Total U.S. Firm Shares ........ 10,350,000
----------
----------
SCHEDULE III
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇▇ Sachs International
---------
Total International Firm Shares ...... 1,150,000
---------
---------
ANNEX I
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Living Trust dated April 16, 1987
Venevision International Ltd.
Dennevar B.V.
Bravo Enterprises, Inc.
Univision Special Partnership I, L.P.
Univision Special Partnership II, L.P.
Univision Special Partnership III, L.P.
ANNEX II
▇▇▇▇▇ Family Partnership, ▇.▇.
▇▇▇▇▇ Living Trust dated September 9, 1994