Exhibit 10.8
PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT (this "Agreement") is made and
entered into as of the 2nd day of October, 1996, by and among Univision
Communications Inc., a Delaware corporation ("Univision"), Mr. A. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"), Grupo Televisa S.A., a Mexican corporation
("Televisa"), and Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the
"▇▇▇▇▇▇▇▇ Brothers") and Corporacion Venezolana de Television (Venevision)
C.A. ("Venevision" and together with Perenchio, Televisa and the ▇▇▇▇▇▇▇▇
Brothers, the "Principals"), with reference to the following facts:
A. In December 1992, Perenchio, Televisa and the
▇▇▇▇▇▇▇▇ Brothers jointly undertook the acquisition from Hallmark Cards and
subsequent operation of nine full power and six low power Spanish language
television stations (the "Stations") and the Univision Spanish language
television network (the "Network").
B. The Stations and the Network are being reorganized
in connection with an initial public offering of the Common Stock of
Univision, which will be the parent company of the Stations and the Network.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. EXCLUSIVE TRANSACTIONS.
1.1 Each of the Principals acknowledges that the various
arrangements and agreements referred to above and the other relationships of the
Principals and their Affiliates to Univision continue to create a fiduciary
relationship between the Principals and their respective Affiliates, on one
hand, and Univision on the other hand, with respect to entering into certain
activities in competition with Univision which would make it inappropriate for
any of them, directly or indirectly, to act independently of the others in
connection with an Exclusive Transaction. Accordingly, none of the Principals
will, and each of the Principals will cause its Affiliates not to, directly or
indirectly, engage or participate in any Exclusive Transaction otherwise than as
permitted in this Agreement, or without first permitting Univision to
participate therein on the terms provided below.
1.2 If any of the Principals or any of their respective
Affiliates, intends to engage in an Exclusive Transaction, such Principal (the
"Offeror") shall, or shall cause its Affiliate to, offer to Univision the
opportunity to participate in such transaction. Univision shall have thirty
days after the Offeror gives it notice in accordance with Section 5.4 of the
material terms and conditions of a transaction in reasonable detail within which
to decide whether or not it wishes to participate therein and to give notice
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to the Offeror, in accordance with Section 5.4, of its decision. Univision
shall have only the right to elect to participate in the entire opportunity
offered to it on substantially the same terms available to the Offeror, and the
failure to give any notice in accordance with Section 5.4 within such thirty
days, or any response other than a timely unqualified acceptance, shall
constitute an election not to participate. If Univision does not notify the
Offeror that it wishes to participate in any such transaction prior to the end
of the thirtieth day following the business day on which such notice is given,
the Offeror and its Affiliates may pursue the transaction for their own
accounts. However, if the material terms and conditions of such transaction
change from the material terms and conditions that Univision failed to accept,
the opportunity shall again be offered to Univision as set forth above, except
that Univision shall have only seven days after receiving such notice within
which to give notice to the Offeror in accordance with Section 5.4 that it will
participate. The preceding sentence shall continue to apply to subsequent
changes in the material terms of such transaction prior to the closing thereof.
Not less than seven days prior to first offering any such opportunity to
Univision, the Offeror will notify Univision that an opportunity may be
presented, and will make available to it the information that the Offeror has
about the potential transaction which is reasonably necessary so that Univision
can familiarize itself with such opportunity and prepare to make decisions
hereunder. However, if the Offeror has less than fifteen business days notice
of a potential transaction, the Offeror shall comply with the preceding sentence
as soon as practicable after it determines that it wishes to evaluate whether or
not to participate in such potential transaction itself.
Notwithstanding the foregoing, (i) if an Exclusive
Transaction offered by Televisa or an Affiliate of Televisa is presented to
the Univision board of Directors and such Exclusive Transaction fails to
receive the requisite approval required by Article III, Section 12(a) of the
Bylaws of Univision on account of the failure to obtain the approval of the
Class T Directors, then neither Televisa nor any of its Affiliates shall be
entitled to engage in such Exclusive Transaction; (ii) if an Exclusive
Transaction offered by the ▇▇▇▇▇▇▇▇ Brothers or an Affiliate of the ▇▇▇▇▇▇▇▇
Brothers is presented to the Univision Board of Directors and such
Transaction fails to receive the requisite approval required by Article III,
Section 12(a) of the Bylaws of Univision on account of the failure to obtain
the approval of the Class V Directors, then neither the ▇▇▇▇▇▇▇▇ Brothers nor
any of their Affiliates shall be entitled to engage in such Exclusive
Transaction; and (iii) if an Exclusive Transaction offered by Perenchio or an
Affiliate of Perenchio is presented to the Univision Board of Directors and
such Transaction fails to receive the requisite approval required by Article
III, Section 12(a) of the Bylaws of Univision on account of the failure to
obtain the approval of the Class A/P Directors, then neither Perenchio nor
any of his Affiliates shall be entitled to engage in such Exclusive
Transaction.
The parties hereto agree that until the second anniversary of
this Agreement, Univision may participate for its own account in 100% of, and
none of the Principals nor any of their Affiliates may participate for their
own account in, any Exclusive Transaction that is discussed by the Univision
Board of Directors and reflected in the minutes of a Univision Board meeting
prior to the date of this Agreement;
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provided that if the reason that the transactions described herein have not
occurred by the second anniversary of this Agreement is that such transactions
(or any portion thereof, including the financing, thereof) have failed to
receive the requisite approval required by Article III, Section 12(a) of the
Bylaws of Univision on account of the failure to obtain the approval of the
Class T Directors and/or the Class V Directors required thereunder, Univision
shall have the right described herein until the fifth anniversary of this
Agreement.
1.3 If Univision accepts the opportunity to participate in an
Exclusive Transaction, then such opportunity shall be taken by Univision (or one
of its subsidiaries, as determined by the Board of Directors of Univision). In
such case, unless the Offeror and Univision agree otherwise, the Offeror and
Univision will enter into a joint venture to participate in such Exclusive
Transaction on substantially the following terms:
(a) the Offeror and Univision will each have a 50% economic interest in
the joint venture;
(b) the Offeror will control the joint venture either through contract
or through the right to designate a majority of directors or similar
persons;
(c) the Offeror will owe to Univision the same duty that a majority
shareholder owes to a minority shareholder;
(d) Univision will have approval rights over material transactions
relating to the joint venture and the business or entity subject to the
joint venture (the "Target Business") to the same extent as the approval
of the Class T and/or Class V Directors of Univision would be required in
respect of Univision; provided that if one or more Persons which are not
affiliated with the Offeror own in the aggregate 25% or more of the
common equity in the Target Business, Univision's sole approval rights
will be with respect to the joint venture owning the interest of
Univision and the Offeror in the Target Business and the right to approve
a change in the line(s) of business engaged in by the Target Business
from the line(s) of business disclosed in the offer made pursuant to
Section 1.2 with respect to such Exclusive Transaction (to the extent the
Offeror has such right), it being agreed that the Offeror shall be
entitled to make all other decisions concerning such Target Business.
Without limiting the foregoing, Univision shall be under no obligation to
make capital contributions or provide financing to the joint venture
except as set forth in such offer, and the Offeror may make such capital
contributions or provide such financing, for its own account, if such
transaction is made the subject of an offer pursuant to Section 1.2 and
Univision elects not to accept such offer in accordance with the terms
hereof.
(e) the parties will have customary tag along rights, drag along rights
and rights of first refusal.
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1.4 (a) If, in compliance with Sections 1.2 and 1.3, any of the
Principals, or any of their Affiliates, acquires an interest in any means of
Broadcasting in an Exclusive Station Transaction, the means of Broadcasting
which is the subject matter of such Exclusive Station Transaction must promptly
become subject to an affiliation agreement with the Network. If it does not do
so for any reason whatsoever, the Principal who, or whose Affiliates, has an
interest in such means will cause it to Broadcast less than 10 hours of
Programming per week.
(b) If any of the Principals, or any of their Affiliates, acquires an
interest in any means of Broadcasting, and such acquisition is not an Exclusive
Station Transaction because at the time of such acquisition there is not an
intention that such means will Broadcast at least 10 hours of Programming per
week on a regular basis, then there is no obligation to offer Univision the
opportunity to participate in such acquisition pursuant to Section 1.2.
However, if such means thereafter begins to Broadcast at least 10 hours of
Programming per week on a regular basis, so that the ownership and operation of
such means is an Exclusive Station Transaction, such means must promptly become
subject to an affiliation agreement with the Network and remain subject to such
an affiliation agreement for so long as such means continues to Broadcast at
least 10 hours of Programming per week on a regular basis. If it does not do so
for any reason whatsoever, the Principal who, or whose Affiliates, has an
interest in such means will use their best efforts to cause it to Broadcast less
than 10 hours of Programming per week.
(c) The affiliation agreements contemplated by Sections 1.4(a) and
1.4(b) above will be in the standard form used by the Network from time to time
for similar means of Broadcasting which are not owned by Univision, with any
items left for negotiation in such standard form being on terms which would be
fair and reasonable between unrelated parties dealing at arm's length in the
market conditions prevailing at the various times of entering into and renewing
such affiliation agreement. If the Network has no standard form of such
affiliation agreement and the parties cannot agree on an appropriate form, or if
items left for negotiation cannot be agreed upon, at the request of any party
all issues pertaining to such affiliation agreement on which the parties cannot
agree shall be submitted to arbitration as provided in Section 1.4(d) below.
Any arbitrator hereunder shall be experienced in the television industry, and
shall be bound by the terms of this Agreement. Any such arbitration shall be
final and binding upon the parties.
(d) Any arbitration provided for in this Agreement shall be conducted
by a single arbitrator in Los Angeles, California in accordance with the
Commercial Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") in effect on the date that such notice is
given, with the following exception: the party that requests arbitration shall
in writing in such notice nominate a competent person to act as the arbitrator.
Within seven days after receipt of such written notice, the other party shall
indicate in writing its concurrence or non-concurrence in the arbitrator
nominated by the other party. If the parties concur on the proposed arbitrator,
that arbitrator shall promptly decide all such issues on which the parties
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cannot agree in accordance with the Arbitration Rules. If the parties fail to
concur on the proposed arbitrator within fourteen days of the receipt of such
notice, then upon application by either party all such issues on which the
parties cannot agree shall be referred for resolution by a single arbitrator
appointed in accordance with the Arbitration Rules by the AAA. Each party shall
pay the fees of its own attorneys, expenses of its witnesses and all other
expenses connected with the presentation of such party's case. The other costs
of any arbitration shall be paid as the arbitrator may direct.
1.5 The provisions of this Section 1 are not intended to prevent
Televisa and its Affiliates from owning the television stations presently owned
in northern Mexico close to the border with the United States or from acquiring
for their own accounts additional television stations in communities in northern
Mexico which are close to the border; provided that Televisa shall not consent
to the transmission or further retransmission by translator or otherwise of the
Programming broadcast by such stations beyond each such station's equivalent to
a Grade B Contour (as such term is currently defined by the Federal
Communications Commission), to the extent such equivalent to a Grade B Contour
is in the United States, or by a cable system in the United States whose
principal head-end is located beyond 35 miles from the community of license of
any transmitting television station in Mexico transmitting the Programming (any
such cable retransmission within such 35 mile limit being hereby expressly
permitted). Televisa agrees to take commercially reasonable action to prevent
any such transmission or further retransmission beyond such reception areas.
1.6 The provisions of this Section 1 are not intended to prevent
Televisa or the ▇▇▇▇▇▇▇▇ Brothers or their respective Affiliates from delivering
Programming to Broadcasters or viewers that are outside the United States by
satellite or any other means of Broadcasting originating outside the United
States, provided that except as hereinafter provided neither Televisa, the
▇▇▇▇▇▇▇▇ Brothers nor their respective Affiliates will, during the term of this
Agreement, consent to reception in the United States of such Programming by a
viewer or Broadcaster, including, without limitation, any cable system, master
antenna or multi-point distribution system, and Televisa, the ▇▇▇▇▇▇▇▇ Brothers
and their respective Affiliates agree to take commercially reasonable action to
prevent any such Broadcaster from further transmitting such Programming to
viewers in the United States. In the event that Televisa, the ▇▇▇▇▇▇▇▇ Brothers
or any of their respective Affiliates desires to engage in the business of
Broadcasting Programming to viewers in the United States from outside the United
States via satellite or any other means of Broadcasting (except to the limited
extent provided in Section 1.5 above) on any pay, subscription or advertising
supported basis, or any combination thereof, then Televisa, the ▇▇▇▇▇▇▇▇
Brothers and their respective Affiliates, as the case may be, shall first offer
to Univision pursuant to Section 1.2 the opportunity to participate in such
business on reasonable terms and conditions. The terms and conditions of
Sections 1.2 and 1.3 shall apply with respect to such offer except that the
thirty days and seven business days periods provided for in Section 1.2 shall
for this purpose be 60 days and 10 business days respectively.
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1.7 The provisions of this Section 1 shall not prevent Televisa, the
▇▇▇▇▇▇▇▇ Brothers or their respective Affiliates from selling time to
advertisers on Broadcasts of Programming originating outside the United
States based on the available viewers ("audience") incidentally available for
such Broadcasts in the United States as well as the audience outside the
United States provided that such audience in the United States has the legal
right to receive such Broadcast (for this purpose, individuals with the
current type of satellite reception antenna commonly called "back-yard
dishes" are deemed to have the legal right to receive such broadcast), and
Univision shall not have the right to share in any incremental revenue to
Televisa, the ▇▇▇▇▇▇▇▇ Brothers or their respective Affiliates attributable
to such audience in the United States. If, however, Televisa, the ▇▇▇▇▇▇▇▇
Brothers or any of their respective Affiliates sell time to any advertiser
based on its own audience outside the United States for the Broadcast of
Programming and Univision's audience for the Broadcast of such Programming,
the revenue for Broadcasting to the combined audiences shall be allocated
between Univision and Televisa, the ▇▇▇▇▇▇▇▇ Brothers or their respective
Affiliates, as the case may be, on the basis of their respective rate cards
for the time period(s) during which such advertising is carried. Neither
Univision, Televisa, the ▇▇▇▇▇▇▇▇ Brothers nor their respective Affiliates
shall be required to carry any such advertising without its prior written
approval.
1.8 The provisions of Sections 1.5, 1.6 and 1.7 hereof shall also apply
MUTATIS MUTANDIS to television station affiliates of the Network and
television stations owned by Univision on the United States side of the
northern border of Mexico; Univision delivering Programming to Broadcasters
or viewers inside the United States by satellite or any other means of
Broadcasting originating inside the United States; and Univision selling time
to advertisers on Broadcasts of Programming originating inside the United
States based on the available viewers incidentally available for such
Broadcasts outside the United States.
1.9 The provisions of Section 1 shall not prohibit any Person from
acting as an employee, agent, advisor or otherwise for any business or
investment vehicle which neither engages in Exclusive Network Transactions
nor owns or operates any means of Broadcasting which regularly broadcasts at
least 10 hours of Programming per week. The provisions of Section 1 shall
also not prohibit any Person from owning a less than 5%, beneficial ownership
interest in any business or investment vehicle, and the provisions of Section
1 shall not apply to any transaction by any such business or investment
vehicle.
1.10 To the maximum extent permitted by law, subject to the obligations
of the Principals and their Affiliates under the Transaction Agreements, the
Principals, their respective Affiliates and the shareholders, officers,
directors and employees of the Principals and their respective Affiliates (i)
may engage in any activity, including but not limited to competing with
Univision and its subsidiaries, (ii) may acquire, own, broker, lease or
operate any business and (iii) shall not be under any obligation to
communicate
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or present any opportunity or potential transaction or matter to Univision or
its subsidiaries.
2. COMPLIANCE BY AFFILIATES. Each of the parties will cause all of its
Affiliates to comply with all of the Transaction Agreements.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Perenchio represents and warrants to Televisa, the ▇▇▇▇▇▇▇▇ Brothers,
Venevision and Univision as follows:
(a) Each corporation and other entity listed on Schedule 3.1 is an
Affiliate of Perenchio, and all right, title and interest therein is
beneficially owned by Mr. A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(b) Each corporation and other entity listed on Schedule 3.1 is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each such corporation and other entity has all
necessary power and authority to execute, deliver and perform the Transaction
Agreements to which it is a party, and is duly qualified or licensed to do
business as a foreign corporation or other entity and in good standing in all
jurisdictions where such qualification is necessary in connection with such
ownership or performance.
(c) The execution, delivery and performance of each of the
Transaction Agreements by each Affiliate of Perenchio who is doing so has
been duly and validly authorized by the Board of Directors or other
appropriate authority of, and by all other necessary action on the part of,
each such Affiliate. This Agreement and each of the Transaction Agreements to
which Perenchio or an Affiliate of Perenchio is a party constitutes the
legally valid and binding obligation of Perenchio or such Affiliate,
enforceable against Perenchio or such Affiliate in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors rights generally. The execution, delivery
and performance of the Transaction Agreements by Perenchio and such
Affiliates, will not violate, or constitute a breach or default (whether upon
lapse of time and/or the occurrence of any act or event or otherwise) under,
the charter documents or by-laws of any such Affiliate or any contract or
agreement to which Perenchio or any such Affiliate may be a party, result in
the imposition of any lien or encumbrance against any assets or properties of
Perenchio or any such Affiliate, or violate any applicable law, rule or
regulation. Except for filings with the Federal Communications Commission,
the United States Department of Justice and the Federal Trade Commission,
which have been duly made, the execution, delivery and performance of this
Agreement and the Transaction Agreements by Perenchio and such Affiliates
will not require filing or registration with, or the issuance of any permit
or other authorization by, any third party or governmental authority.
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3.2 Televisa represents and warrants to Perenchio, the ▇▇▇▇▇▇▇▇
Brothers, Venevision and Univision as follows:
(a) Each corporation and other entity listed on Schedule 3.2 is an
Affiliate of Televisa, and all right, title and interest therein is
beneficially owned by Televisa.
(b) Each corporation and other entity listed on Schedule 3.2 is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each such corporation and other entity has all
necessary power and authority to execute, deliver and perform the Transaction
Agreements to which it is a party, and is duly qualified or licensed to do
business as a foreign corporation or other entity and in good standing in all
jurisdictions where such qualification is necessary in connection with such
ownership or performance.
(c) The execution, delivery and performance of this Agreement and
each of the Transaction Agreements by Televisa, has been duly and validly
authorized by the Board of Directors of Televisa and by all other necessary
action on the part of Televisa. The execution, delivery and performance of
each of the Transaction Agreements by each Affiliate of Televisa which is
doing so has been duly and validly authorized by the Board of Directors or
other appropriate authority of, and by all other necessary action on the part
of, each such Affiliate. This Agreement and each of the Transaction
Agreements to which Televisa or an Affiliate of Televisa is a party
constitutes the legally valid and binding obligation of Televisa or such
Affiliate, enforceable against Televisa or such Affiliate in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors rights generally. The
execution, delivery and performance of the Transaction Agreements by Televisa
and such Affiliates, will not violate, or constitute a breach or default
(whether upon lapse of time and/or the occurrence of any act or event or
otherwise) under, the charter documents or by-laws of Televisa or any such
Affiliate or any contract or agreement to which Televisa or any such
Affiliate may be a party, result in the imposition of any lien or encumbrance
against any assets or properties of Televisa or any such Affiliate, or
violate any applicable law, rule or regulation. Except for filings with the
Federal Communications Commission, the United States Department of Justice
and the Federal Trade Commission, which have been duly made, the execution,
delivery and performance of this Agreement and the Transaction Agreements by
Televisa and such Affiliates will not require filing or registration with, or
the issuance of any permit or other authorization by, any third party or
governmental authority.
3.3 Each of the ▇▇▇▇▇▇▇▇ Brothers represents and warrants to Televisa,
Perenchio and Univision as follows:
(a) Each corporation and other entity listed on Schedule 3.3 is an
Affiliate of the ▇▇▇▇▇▇▇▇ Brothers.
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(b) Each corporation and other entity listed on Schedule 3.3 is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each such corporation and other entity has all
necessary power and authority to execute, deliver and perform the Transaction
Agreements to which it is a party, and is duly qualified or licensed to do
business as a foreign corporation or other entity and in good standing in all
jurisdictions where such qualification is necessary in connection with such
ownership or performance.
(c) The execution, delivery and performance of each of the
Transaction Agreements by each Affiliate of the ▇▇▇▇▇▇▇▇ Brothers which is
doing so has been duly and validly authorized by the Board of Directors or
other appropriate authority of, and by all other necessary action on the part
of, each such Affiliate. This Agreement and each of the Transaction
Agreements to which the ▇▇▇▇▇▇▇▇ Brothers or any such Affiliate is a party
constitutes the legally valid and binding obligation of the ▇▇▇▇▇▇▇▇ Brothers
or such Affiliate, enforceable against the ▇▇▇▇▇▇▇▇ Brothers or such
Affiliate in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws and equitable principles relating to or limiting creditors
rights generally. The execution, delivery and performance of the Transaction
Agreements by the ▇▇▇▇▇▇▇▇ Brothers and such Affiliates, will not violate, or
constitute a breach or default (whether upon lapse of time and/or the
occurrence of any act or event or otherwise) under, the charter documents or
by-laws of any such Affiliate or any contract or agreement to which the
▇▇▇▇▇▇▇▇ Brothers or any such Affiliate may be a party, result in the
imposition of any lien or encumbrance against any assets or properties of the
▇▇▇▇▇▇▇▇ Brothers or any such Affiliate, or violate any applicable law, rule
or regulation. Except for filings with the Federal Communications
Commission, which have been duly made, the execution, delivery and
performance of this Agreement and the Transaction Agreements by the ▇▇▇▇▇▇▇▇
Brothers and such Affiliates will not require filing or registration with, or
the issuance of any permit or other authorization by, any third party or
governmental authority.
4. DEFINITIONS.
4.1 When used in this Agreement, the following terms shall have
the meanings set forth below, except as otherwise expressly modified herein,
and include the plural as well as the singular:
"AFFILIATE" of a Person means any Person that is, directly or
indirectly, controlled by the Person in question. For the purposes of this
definition, (i) "control," when used with respect to any Person, means the
power to direct the management and policies of such Person, whether through
the direct or indirect ownership of voting securities, by contract or
otherwise and (ii) Univision and its controlled Affiliates shall not be
deemed to be Affiliates of any of the parties or any of the Affiliates of any
of the parties.
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"BROADCAST" or "BROADCASTING" means transmitting or otherwise delivering
or distributing Programming, either free or on any pay or subscription basis,
directly to viewers in the United States by any means now known or hereafter
developed, including, without limitation, by means of over-the-air
television, HDTV, cable and cable systems, master antennas, satellite,
microwave, closed circuit, multi-point distribution, wire, fiber optic,
direct broadcast satellites and any means subject to regulation under the
Communications Act as then in effect or successor legislation or then subject
to regulation by the Federal Communications Commission or successor agency.
Broadcast and Broadcasting shall include, without limitation, delivery of
Programming either free or on any pay or subscription basis to viewers in the
United States in any manner in which the time of reception of the Programming
by the viewer is determined by such viewer. For purposes of illustration
(and not limitation) of the previous sentence, a technology now existing or
hereafter developed that enables a television viewer to order a program for
viewing at the time of his choice is Broadcasting. Broadcast or
Broadcasting, however, does not include the production or distribution of
theatrical motion pictures, including distribution of such motion pictures to
any Person for Broadcasting, or the manufacture or distribution to the public
of Programming recorded on a physical device like a video cassette or a laser
disc for home video use. A "Broadcaster" is a Person that Broadcasts.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as amended,
or any similar Federal statute, and the rules, regulations and policies of
the Federal Communications Commission thereunder.
"DENNEVAR" means Dennevar B.V, a Netherlands corporation.
"EXCLUSIVE NETWORK TRANSACTIONS" means supplying Programming to any
Person for the purpose of Broadcasting whether by such Person or by a direct
or remote transferee from such Person unless such supplying of Programming
results solely from a party's interest in a satellite or common carrier
facility with respect to which it has no direct or indirect control over or
interest in the content of what is being transmitted by such
telecommunications facility. Exclusive Network Transactions do not, however,
include the supply, by satellite or otherwise, by Univisa, Dennevar or their
respective Affiliates (a "Supplier" of Programming), strictly in compliance
with the Program License Agreements and Section 1.6 hereof, which does not
contain advertising sold by the Supplier or an Affiliate of the Supplier, to
Persons other than the Partnership so long as that in supplying such
Programming (a) the Supplier does not act, directly or indirectly, as a
network, or lease or broker time on a network (whether such Programming is
provided on a free or any pay basis), or (b) if such Programming is a live
program it is supplied on an individual basis and not as a group of more than
one live programs. For the purpose of the preceding sentence, "network" means
an entity which transmits the same Programming for simultaneous
retransmission by more than one Broadcaster or which otherwise provides the
same Programming to more than one Broadcaster and designates the time for
Broadcast of such Programming.
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"EXCLUSIVE STATION TRANSACTIONS" means the acquisition, ownership,
brokerage, leasing or operation of any means of Broadcasting, now known or
hereafter developed other than a satellite or common carrier facility with
respect to which the party having an interest therein has no direct or
indirect control over the content of what is being transmitted by such
satellite or common carrier facility. Exclusive Station Transactions,
however, do not include the acquisition of any such means of Broadcasting so
long as at the time of such acquisition there is not an intention that such
means will broadcast at least 10 hours of Programming per week on a regular
basis, or the ownership, brokerage, leasing or operation of any such means of
Broadcasting so long as such means does not broadcast at least 10 hours of
Programming per week on a regular basis.
"EXCLUSIVE TRANSACTIONS" means Exclusive Network Transactions and
Exclusive Station Transactions.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PROGRAMMING" means television programming in any form, in Spanish
(whether directly recorded or dubbed) or with Spanish subtitles, of the type
Broadcast at any time in the United States. Television programming means
programming of every kind appearing on television.
"PROGRAM LICENSE AGREEMENTS" means the agreements to be entered
into between The Univision Network Limited Partnership and Univisa and The
Univision Network Limited Partnership and Dennevar with respect to the
furnishing to Univision of program material for exploitation by the Network.
"TRANSACTION AGREEMENTS" means this Agreement and the agreements
and instruments listed in Schedule A hereto, as they may be amended,
supplemented or superseded from time to time.
"UNITED STATES" means the 50 states plus all territories of the
United States except Puerto Rico.
"UNIVISA" means Univisa, Inc., a Delaware corporation.
5. MISCELLANEOUS.
5.1 ENTIRE AGREEMENT. The express provisions of this
Agreement and the Transaction Agreements, and the documents delivered in
connection with any thereof, constitute the entire agreement among the
parties and their Affiliates, and supersede all other agreements and
understandings, both written and oral, among the parties and their
Affiliates, or any of them, with respect to the subject matter hereof and
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thereof. No implied agreements shall be deemed to exist with respect to such
subject matter. All references to sections, subsections and schedules shall
be deemed references to such part of this Agreement, unless the context shall
otherwise require.
5.2 ASSIGNMENTS. Neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by any of the parties, in
whole or in part, whether voluntarily, by operation of law or otherwise. Any
attempted assignment or delegation in violation of this prohibition shall be
null and void. Subject to the foregoing, all of the terms and provisions
hereof shall be binding upon, and inure to the benefit of, the permitted
successors and assigns of the parties. Nothing contained herein, express or
implied, is intended to confer on any Person other than the parties or their
respective permitted successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement. Pursuant to
the financing documents relating to financing to Univision, the
Administrative Agent (for the benefit of the various lenders) has been
granted a security interest in and to all of Univision's rights in this
Agreement. The parties hereto acknowledge and consent to the grant of such
security interest.
5.3 JURISDICTION; VENUE; SERVICE OF PROCESS. Each of the
parties irrevocably submits to the jurisdiction of any California State or
United States Federal court sitting in Los Angeles County in any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and irrevocably agrees that any such action or
proceeding may be heard and determined only in such California State or
Federal court. Each of the parties irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of any such action or proceeding. Each of the parties
irrevocably appoints CT Corporation System (the "Process Agent"), with an
office on the date hereof at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as
his or its agent to receive on behalf of him or it and his or its property
service of copies of the summons and complaint and any other process which
may be served in any such action or proceeding. Such service may be made by
delivering a copy of such process to any of the parties in care of the
Process Agent at the Process Agent's above address or such other address the
Process Agent may have in the future, and each of the parties irrevocably
authorizes and directs the Process Agent to accept such service on its
behalf. As an alternate method of service, each of the parties consents to
the service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding by the mailing or
delivering of a copy of the such process to such party at its address
specified in or in accordance with Section 5.4. Each of the parties agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
5.4 NOTIFICATION. All notices and other communications
required or permitted hereunder shall be in writing, shall be deemed duly
given upon actual receipt, and shall be delivered (a) in person, (b) by
registered or certified mail (air mail if addressed to an address outside of
the country in which mailed), postage prepaid, return receipt requested, (c)
by a generally recognized overnight courier service which provides
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written acknowledgement by the addressee of receipt, or (d) by facsimile or
other generally accepted means of electronic transmission (provided that a
copy of any notice delivered pursuant to this clause (d) shall also be sent
pursuant to clause (b)), addressed as set forth on Schedule 1 hereto or to
such other addresses as may be specified by like notice to the other parties.
5.5 INDEMNIFICATION. Each of the parties (an "INDEMNIFYING
PARTY") indemnifies each of the other parties, their respective Affiliates,
the officers, directors, shareholders, agents, employees and attorneys of
each of the other parties and their respective Affiliates, and their
respective heirs, administrators, successors and assigns, and agrees to hold
each of them harmless, from and against any and all Losses which any of them
may incur or suffer, or which may be asserted against or imposed on any of
them, directly or indirectly, arising out of, as a result of or based upon
any inaccuracy in or breach or nonperformance of any of the representations,
warranties, covenants or agreements made by the Indemnifying Party in this
Agreement. As used in this Agreement, "LOSSES" refers to any and all
liability, losses, costs, deficiencies, damages, demands, claims, actions,
judgments, causes of action and expenses (including, without limitation,
attorneys' and accountants' fees, costs incurred to investigate or defend,
and costs incurred to enforce the provision hereof).
5.6 INVALIDITY. If any provision of this Agreement is too
broad to permit enforcement to its full extent, such provision shall
nevertheless be enforced to the maximum extent permitted by law, and each
party agrees that such provisions may be judicially modified accordingly in
any proceeding brought to enforce this Agreement. If any portion of this
Agreement shall be held to be indefinite, invalid or otherwise entirely
unenforceable, the entire Agreement shall not fail on account thereof. The
balance of this Agreement shall continue in full force and effect.
5.7 AMENDMENTS AND WAIVERS. No modification, amendment,
termination or waiver of any provision of this Agreement, nor consent to any
departure therefrom, shall in any event be effective unless the same shall be
in writing and signed by the parties, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which
given. Neither any course of dealing nor any failure or delay on the part of
any of the parties in exercising any right, power or privilege hereunder
shall impair any such power, right or privilege or operate as a waiver
thereof or as a waiver or acquiescence in any default, nor shall any single
or partial exercise thereof preclude any other or further exercise of any
other right, power or privilege. No notice to or demand on any of the
parties in any case shall entitle such party to any other or further notice
or demand in the same, similar or other circumstances.
5.8 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each party and delivered to each party.
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5.9 FURTHER ACTIONS. Subject to the terms and conditions of
this Agreement, each of the parties agrees to use all commercially reasonable
efforts to take, or cause to be taken, all action necessary, proper or
advisable to consummate and make effective the transactions contemplated by
this Agreement.
5.10 PUBLICITY. The parties will coordinate, and no party
will issue, or allow the issuance of, any press release, publicity statement,
letter to shareholders or other public notice relating to the Transaction
Agreement or the transactions contemplated thereby without the concurrence of
the other parties. Notwithstanding the foregoing, a party may issue such
press release, publicity statement, letter to shareholders or other public
notice if it believes, based upon the advice of such party's counsel, that
the issuance thereof is required by applicable law, rule or stock exchange
regulation, provided, however, to the extent reasonably practicable within
the requirements of the law, rule or stock exchange regulation, such party
shall give the other parties the opportunity to review and comment on any
such press release, publicity statement, letter or notice and shall revise it
to the extent reasonably practicable within the requirements of the
applicable law, rule or stock exchange regulation to reflect their concern.
5.11 SPECIFIC PERFORMANCE. The parties hereby acknowledge
that each party would suffer irreparable injury and would not have an
adequate remedy at law for money damages if the provisions of this Agreement
(including, without limitation Sections 1 and 2) were not performed in
accordance with their terms. Each party agrees that the others shall be
entitled to specific enforcement of the terms of this Agreement in addition
to any other remedy to which they are entitled, at law or in equity.
Furthermore, if any action or proceeding shall be instituted to enforce the
provisions hereof, any party against whom such action or proceeding is
brought hereby waives the claim or defense therein that there is an adequate
remedy at law, and agrees not to urge in any such action or proceeding the
claim or defense that such remedy at law exists.
5.12 SECTION AND OTHER HEADINGS. Section titles are for
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text.
5.13 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts between California parties made and performed in that State,
without regard to conflict of laws principles.
5.14 ATTORNEYS' FEES; COSTS AND EXPENSES. In any action or
proceeding brought to enforce any provision of the Agreement, or where any
provision hereof is validly asserted as a defense, the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its cost and
expense and any other available remedy.
5.15 TERM. With respect to Exclusive Transactions relating
to direct broadcast satellite or direct to home satellite to the U.S. market,
this Agreement shall no
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longer apply to Televisa or the ▇▇▇▇▇▇▇▇ Brothers or their respective
Affiliates when the Amended and Restated Program License Agreement to which
an Affiliate of such Principal is a party terminates and shall no longer
apply to Perenchio or his Affiliates when both such Amended and Restated
Program License Agreements terminate. With respect to any other Exclusive
Transaction, this Agreement shall no longer apply to a Principal or its
Affiliates when such Principal no longer owns the Required Amount (as that
term is defined in Univision's Restated Certificate of Incorporation) as
determined pursuant to Univision's Restated Certificate of Incorporation.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
/s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ White
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ White
-------------------------------
Title: Exec. Vice President & Chief
Financial Officer
-----------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Univision Communications Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Vice President and Secretary
-----------------------------
Corporacion Venezolana de Television,
C.A.(Venevision)
By: /s/ ILLEGIBLE
--------------------------------
Name:
------------------------------
Title: Attorney-in-fact
-----------------------------
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