WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement (the "Agreement") is entered into
as of December 19, 2001, by and between Grupo Televisa, S.A., a corporation
organized under the laws of Mexico ("Buyer"), and Univision Communications
Inc., a Delaware corporation ("Seller").
WHEREAS, Buyer has indicated it desires to purchase a Warrant
(the "Warrant") to purchase shares of Seller's Class A Common Stock (the
"Class A Shares");
WHEREAS, Seller is willing to sell such Warrant to Buyer;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound, the parties agree as follows:
1. PURCHASE AND SALE OF STOCK. In consideration of the surrender by
Buyer of certain governance rights under Seller's charter documents, Seller
hereby sells to Buyer and Buyer hereby purchases from Seller the Warrant to
purchase an aggregate of 9,000,000 Class A Shares (collectively, the
"Warrant Shares"). A form of the Warrant is attached hereto as Exhibit A.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer as follows:
A. ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of Delaware with all necessary
corporate power and authority to execute, deliver and perform this
Agreement.
B. EXECUTION, DELIVERY AND PERFORMANCE; BINDING OBLIGATION. The
execution, delivery and performance of this Agreement have been duly and
validly authorized by all necessary corporate action on the part of Seller.
This Agreement constitutes the legally valid and binding obligation of
Seller, enforceable against Seller 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.
C. NO VIOLATION. Neither the Seller nor any of its subsidiaries
is (i) in violation of its charter or bylaws or (ii) in breach or default
in the performance or observance of any material agreement to which it is a
party or by which it is bound, except as disclosed in the Public Filings
(as defined below) and except for such breaches or defaults that would not
have a material adverse effect on (x) the condition (financial or
otherwise), earnings, business affairs or business prospects of Seller and
its subsidiaries, taken as a whole, or (y) Seller's ability to perform its
obligations under this Agreement (a "Material Adverse Effect"). The
execution, delivery and performance of this Agreement by Seller, the
conversion of the Preferred Shares and the exercise of the Warrant will not
violate or constitute a breach or default (whether upon lapse of time or
the occurrence of any act or event or otherwise) under (a) the charter
documents or bylaws of Seller or any of its subsidiaries, (b) any law to
which Seller or any of its subsidiaries is subject, which breach, default
or violation would have a Material Adverse Effect or (c) any material
agreement to which Seller or any of its subsidiaries is a party or is
bound, which breach, default or violation would have a Material Adverse
Effect.
D. NO REGISTRATION. The execution, delivery and performance of
this Agreement by Seller and the transactions contemplated hereby, other
than the exercise of the Warrant, which require a filing under the HSR Act
(as defined below) and could require approval from the Federal
Communication Commission, will not require filing or registration with, or
the issuance of any permit by, or receipt of any approval or other consent
from, any person or entity.
E. PUBLIC DOCUMENTS. Since December 31, 2000, Seller has filed
with the U.S. Securities and Exchange Commission (the "SEC") all reports,
proxy materials and registration statements required to be filed by it
pursuant to the U.S. federal securities laws and has made all other filings
required to be made by it with the SEC (collectively, the "Public
Filings"). None of the Public Filings contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading, in each
such case as of its filing date, mailing date or effective date, as the
case may be. Since the date of the filing with the SEC of Seller's most
recent Form 10Q, there has not been (A) any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), earnings, business affairs or business
prospects of Seller and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, (B) any transaction entered
into by Seller or its subsidiaries, other than in the ordinary course of
business, that is material to Seller and its subsidiaries, taken as a
whole, (C) any dividend or other obligation declared, paid or made by
Seller on its capital stock or (D) any incurrence by Seller or its
subsidiaries of any material liability or obligation, direct or contingent.
F. FINANCIAL STATEMENTS. The consolidated financial statements
included in or incorporated by reference into the Public Filings, together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the
Seller and its subsidiaries on the basis stated therein at the respective
dates or for the respective periods to which they apply, and 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.
G. OWNERSHIP. The Warrant upon issuance, and the Warrant Shares
upon issuance in accordance with the terms of the Warrant, will be duly
authorized, validly issued and outstanding and fully paid and
nonassessable. Except as set forth in the Public Filings, Seller has not
entered into any outstanding contracts or other rights to subscribe for or
purchase, or contracts or other obligations to issue or grant any rights to
acquire, any capital of Seller, or to restructure or recapitalize Seller,
and, to Seller's knowledge, there are no outstanding contracts to
repurchase, redeem or otherwise acquire any capital stock of Seller.
H. RESERVATION OF SHARES. Seller has reserved a sufficient number
of shares of Class A Common Stock for issuance to Holder upon exercise in
full of the Warrant.
I. LISTING ON THE NEW YORK STOCK EXCHANGE ("NYSE"). The Warrant
Shares have been, or by December 31, 2001 will be, approved for listing on
the NYSE, subject only to official notice of issuance.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
A. ORGANIZATION. Buyer is a limited liability company, duly
organized, validly existing and in good standing under the laws of Nevada
with all necessary corporate power and authority to execute, deliver and
perform this Agreement.
B. EXECUTION, DELIVERY AND PERFORMANCE; BINDING OBLIGATION. The
execution, delivery and performance of this Agreement have been duly and
validly authorized by all necessary corporate action on the part of Buyer.
This Agreement constitutes the legally valid and binding obligation of
Buyer, enforceable against Buyer 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.
C. NO VIOLATION OF LAW; AGREEMENTS. The execution, delivery and
performance of this Agreement by Buyer will not violate or constitute a
breach or default (whether upon lapse of time or the occurrence of any act
or event or otherwise) under (i) the charter documents or bylaws of Buyer,
(ii) any law to which Buyer is subject, which breach, default or violation
would have a material adverse effect on Buyer's ability to perform its
obligations under this Agreement, or (iii) any agreement to which Buyer is
a party, which breach, default or violation would have a material adverse
effect on Buyer's ability to perform its obligations under this Agreement.
D. INVESTMENT INTENT. Buyer is purchasing the Warrant and if
Buyer exercises the Warrant, the Warrant Shares, solely for its own
account, for investment purposes only and not with a view to the
distribution thereof in violation of the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities law, and Buyer
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of its investment represented
by its purchase of the Warrant and the Warrant Shares. Buyer acknowledges
that the Warrant and the Warrant Shares have not been and prior to issuance
will not be registered under the Securities Act or any other securities law
and may not be sold, and Buyer hereby covenants that the Warrant and the
Warrant Shares will not be sold, in whole or in part, in the United States
of America except pursuant to a registration statement effective under the
Securities Act or pursuant to an exemption from registration under the
Securities Act, and in compliance with all other applicable securities
laws.
E. ACCREDITED INVESTOR. Buyer is an accredited investor within
the definition set forth in Rule 501(a) of the regulations promulgated by
the SEC pursuant to the Securities Act.
4. CONTINUING COVENANTS.
A. REGISTRATION RIGHTS. The parties agree and acknowledge that
the Class A Shares which are issuable upon exercise of the Warrant will be
subject to the terms and conditions of the Registration Rights Agreement
(the "Registration Rights Agreement") dated October 2, 1996 by and among
Seller, Buyer and various other parties set forth therein. The parties
further agree that for the purposes of the Registration Rights Agreement
the Class A Shares will be deemed Common Stock held by the Televisa
Holders.
B. HSR ACT MATTERS. Seller and Buyer will as promptly as
practicable, file with the United States Federal Trade Commission (the
"FTC") and the United States Department of Justice (the "DOJ") (i) the
notification and report form, if any, required for the transactions
contemplated by this Agreement, including without limitation any exercise
by Buyer of the Warrant, and (ii) any supplemental information requested in
connection therewith pursuant to the Xxxx-Xxxxx-Xxxxxx Act of 0000 (xxx
"XXX Xxx"). Seller and Buyer will use commercially reasonable efforts to
take all such actions, such that the waiting period specified in the HSR
Act will expire or be satisfied as soon as reasonably possible. Prior to
such expiration or satisfaction, Buyer agrees not to exercise the Warrant
in whole or in part.
5. GENERAL.
A. SURVIVAL. The representations, warranties and agreements in
this Agreement will survive any investigation made by either party, and the
execution of this Agreement.
B. NO ASSIGNMENT. Neither party may assign this Agreement without
the prior written consent of the other party; provided, that Buyer may
assign its rights to any direct or indirect wholly-owned subsidiaries of
Grupo Televisa S.A.
C. BINDING EFFECT; PARTIES IN INTEREST. This Agreement is binding
on and benefits only the parties and their respective permitted successors
and assigns. Nothing in this Agreement gives any rights or remedies to any
person other than the parties and their respective permitted successors and
assigns, nor does anything in this Agreement relieve or discharge any
obligation or liability of any third person to either party. No provision
of this Agreement gives any third person any right of subrogation or action
over or against either party to this Agreement.
D. COMPLETE AGREEMENT. This Agreement, including the documents
attached to this Agreement as Exhibits, is the complete and exclusive
statement of agreement of the parties as to matters covered by it. It
replaces and supersedes all prior written or oral agreements or statements
by and among the parties with respect to the matters covered by it. No
representation, statement, condition or warranty not contained in this
Agreement is binding on the parties.
E. AMENDMENTS; WAIVERS. Any amendment to this Agreement requires
the approval of both parties. Any waiver of any right or remedy requires
the consent of the party waiving it. Every amendment or waiver must be in
writing and designated as an amendment or waiver, as appropriate. No
failure by either party to insist on the strict performance of any
provision of this Agreement, or to exercise any right or remedy, will be
deemed a waiver of such performance, right or remedy, or of any other
provision of this Agreement.
F. INTERPRETATION. If any claim is made by a party relating to
any conflict, omission or ambiguity in the provisions of this Agreement, no
presumption or burden of proof or persuasion will be implied because this
Agreement was prepared by or at the request of either party or its counsel.
The parties waive any statute or rule of law to the contrary.
G. ATTORNEYS' FEES AND COSTS. If any legal action or other
proceeding is brought to enforce or interpret this Agreement or matters
relating to it, the substantially prevailing party will be entitled to
recover from the other party reasonable attorneys' fees and other costs
incurred in such action or proceeding, in addition to any other relief to
which the prevailing party is entitled.
H. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of California without
regard to its rules of conflict of laws.
I. 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 our 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 000 Xxxx 0xx Xxxxxx, Xxx Xxxxxxx, XX
00000 as its agent to receive on behalf of it and 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, 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
personally delivering of a copy of such process to such party at its
address specified in or pursuant to Section 5.M. Each of the parties agrees
that a final judgment in any such action or proceeding will be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
J. ENFORCEMENT OF AGREEMENT. The parties agree that irreparable
damage would occur if any of the provisions of this Agreement were not
performed in accordance with its specific terms or as otherwise breached.
It is accordingly agreed that the parties will be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any California
court, this being in addition to any other remedy to which they are
entitled at law or in equity. In any such action for specific performance,
no party will be required to post a bond.
K. COUNTERPARTS. This Agreement and any amendment hereto or any
other agreement (or document) delivered pursuant hereto may be executed in
one or more counterparts, each of which will be deemed an original and all
of them will constitute one agreement. A facsimile signature page will be
deemed an original signature page.
L. HEADINGS. The headings in this Agreement are only for
convenience and ease of reference and are not to be considered in
construction or interpretation.
M. NOTICES. Any notice required to be given hereunder will be
sufficient if in writing, and sent by facsimile transmission and by courier
service (with proof of service), hand delivery or certified or registered
mail (return receipt requested and first-class postage prepaid), addressed
as follows:
If to Buyer: If to Seller:
Grupo Televisa, S.A. Univision Communications Inc.
Xx. Xxxxx xx Xxxxxxx Xx. 0000 1999 Avenue of the Stars, Suite 3050
Edificio A, Piso 0, Xxxxxxx Xxxxx Xx Xxx Xxxxxxx, Xxxxxxxxxx 00000
01210, Mexico, DF Attn: C. Xxxxxxx Xxxxxxxxxx
Attention: Xxxxxxx de Angoitia Telecopier: (000) 000-0000
Telecopier: 011-52-55-5-261-2451
With a copy to:
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx O'Melveny & Xxxxx LLP
One New York Plaza 1999 Avenue of the Stars, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx Attention: Xxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000 Telecopier No.: (000) 000-0000
or to such other address as either party specifies by written
notice so given, and such notice will be deemed to have been delivered as
of the date so telecommunicated, personally delivered or mailed.
N. FURTHER ASSURANCES. Each party will execute and deliver, both
before and after the Closing, such further certificates, agreements and
other documents and take such other actions as the other party may
reasonably request to consummate or implement the transactions contemplated
by this Agreement or to evidence such events or matters, including the
execution and delivery of such assignment and transfer documents as either
party may deem necessary or desirable.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and
year first above written.
BUYER:
GRUPO TELEVISA, S.A.
By:
-------------------------------
Name:
Title:
SELLER:
UNIVISION COMMUNICATIONS INC.
By:
-------------------------------
Name:
Title:
EXHIBIT A
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS
WARRANT MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE
PROPOSED TRANSACTION DOES NOT REQUIRE REGISTRATION OR QUALIFICATION UNDER
APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
WARRANT
TO PURCHASE COMMON STOCK OF
UNIVISION COMMUNICATIONS INC.,
A DELAWARE CORPORATION
THIS IS TO CERTIFY THAT: [ ], or registered
transferees (the "Holder") is entitled to purchase from Univision
Communications Inc., a Delaware corporation (the "Company"), at any time
and from time to time on and after the date hereof and prior to the
Expiration Date an aggregate of 9,000,000 shares of Class A Common Stock at
a purchase price of $38.261 per share, all on the terms and conditions and
subject to the adjustments provided for in this warrant (the "Warrant").
SECTION 1. CERTAIN DEFINITIONS. As used in this Warrant, unless
the context otherwise requires:
"Affiliate" means, with respect to a specified Person, any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Business Day" means any day on which commercial banks are not
authorized or required to close in Los Angeles, California.
"Class A Common Stock" means the Company's authorized Class A
Common Stock, par value $.01 per share.
"Class P Common Stock" means the Company's authorized Class P
Common Stock, par value $.01 per share.
"Class T Common Stock" means the Company's authorized Class T
Common Stock, par value $.01 per share.
"Class V Common Stock" means the Company's authorized Class V
Common Stock, par value $.01 per share.
"Common Stock" means the Class A Common Stock, Class P Common
Stock, Class T Common Stock and Class V Common Stock.
"Communications Act" means the Federal Communications Act of
1934, as amended, or any other similar Federal statute, and the rules and
regulations of the Federal Communications Commission promulgated
thereunder.
"Exercise Price" means, on the date hereof, the purchase price
per share as set forth on the first page of this Warrant and thereafter
shall mean such amount as adjusted pursuant to Section 4.
"Expiration Date" means December 17, 2017.
"Market Price" means the average of the daily closing prices per
share for the 30 consecutive trading days before the date in question. The
closing price for each day will be the last sales price regular way or, if
no such sale takes place on such day, the average of the closing bid and
ask prices regular way on the New York Stock Exchange.
"Person" means a corporation, an association, a trust, a
partnership, a joint venture, an organization, a business, an individual, a
government or political subdivision thereof or a governmental body.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder, all as the same
shall be in effect at the time.
"Warrant Shares" at any time means the shares of Class A Common
Stock then purchasable by the Holder upon the exercise of this Warrant.
SECTION 2. EXERCISE OF WARRANT.
-------------------
2.1 Conditions of Exercise. The Holder may at any time on
and after the date hereof exercise this Warrant in whole or in part from
time to time, for the number of Warrant Shares which the Holder is then
entitled to purchase hereunder; provided, however, that this Warrant may
not be exercised unless at the time of such exercise all of the following
conditions are met:
(a) it is lawful at the time of exercise for the Holder to own
the number of shares of Common Stock which the Holder would own
upon such exercise of this Warrant, and the exercise of this
Warrant and such Holder's acquisition of such Common Stock
hereunder does not violate the Communications Act or other
applicable law, rule or regulation;
(b) the Company has received such evidence as it may reasonably
request confirming the foregoing, including, without limitation,
an opinion in form and substance, and from counsel, reasonably
satisfactory to the Company and, if the Company requests, an
agreement from the Holder reasonably satisfactory to the Company
indemnifying the Company against losses in the event the exercise
of this Warrant violates the Communications Act; and
(c) any required approval from the Federal Communications
Commission has been received.
In the event that the Company declines to permit the exercise of
this Warrant because it believes that paragraphs (a) or (b) above have not
been satisfied and a procedure exists for obtaining a binding determination
of whether or not such exercise will cause a violation of applicable law,
including, without limitation, obtaining a declaratory ruling from the
Federal Communications Commission under Rule 1.2 of the rules promulgated
under the Communications Act (or any successor rule), then at the request
of the Holder or the Company, the Company and the Holder will use
reasonable efforts to obtain such determination. Any such efforts shall be
at the expense of the Holder, unless the Company is unreasonable in
refusing to rely on the assurances provided pursuant to paragraph (b), in
which case such efforts shall be at the expense of the Company.
2.2 Method of Exercise. The Holder may exercise this Warrant in
whole or in part by delivering to the Company (i) a written notice of the
Holder's election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased, (ii) this Warrant, (iii) the
evidence and agreement requested by the Company referred to in Section
2.1(b) above and (iv) an amount equal to the product of the Exercise Price,
as adjusted, and the number of Warrant Shares being purchased pursuant to
the exercise of this Warrant in the form of a cashiers' check or wire
transfer. The Holder may also exercise this Warrant, in whole or in part,
in a "cashless" exercise, upon delivery to the Company of (i) this Warrant
and (ii) a Cashless Exercise Form in the form of Exhibit A. In a cashless
exercise, the right to purchase each Warrant Share may be exchanged for
that number of shares of Common Stock determined by multiplying the number
one (1) by a fraction, the numerator of which will be the difference
between (y) the then current Market Price and (z) the Exercise Price, and
the denominator of which will be the then current Market Price.
2.3 Issuance of Warrant Shares. Upon the Holder's exercise of
this Warrant, the Company shall issue the Warrant Shares so purchased to
the Holder and within two Business Days shall cause to be executed and
delivered to the Holder a certificate or certificates representing the
aggregate number of fully-paid and nonassessable shares of Common Stock
issuable upon such exercise. The stock certificate or certificates for
Warrant Shares so delivered shall be in such denominations as may be
specified in such notice and shall be registered in the name of the Holder.
Such certificate or certificates shall be deemed to have been issued and
the Holder shall be deemed to have become a holder of record of such Common
Stock, with the right, to the extent permitted by law, to vote such Common
Stock or to consent or to receive notice as a stockholder, as of the close
of business on the date all of the conditions referred to in Section 2.1
are satisfied (including, without limitation, the obtaining of any
requested declaratory ruling from the Federal Communications Commission)
and all of the items specified in Section 2.2 above are delivered to the
Company. If this Warrant shall have been exercised only in part the Company
shall, within two Business Days of delivery of such certificate or
certificates, deliver to the Holder either (i) a new warrant dated the date
it is issued evidencing the rights of the Holder to purchase the remaining
Warrant Shares called for by this Warrant or (ii) this Warrant bearing an
appropriate notation of such partial exercise. The Holder shall pay all
expenses, transfer taxes and other charges payable in connection with the
preparation, issuance and delivery of stock certificates under this Section 2.
2.4 Class of Shares Issued. The Company shall issue to the Holder
shares of Class A Common Stock upon exercise of this Warrant.
2.5 Term of Warrant. The Holder shall have the right, at any time
on or before the Expiration Date to purchase from the Company at the
Exercise Price the number of fully paid and nonassessable Warrant Shares
that the Holder may at the time be entitled to purchase on exercise of this
Warrant. After the Expiration Date, any previously unexercised portion of
this Warrant will be void, have no value and be of no further effect.
SECTION 3. TRANSFER OF WARRANT.
-------------------
3.1 Restrictions on Transfer. Subject to Section 5 hereof, this
Warrant and all Warrant Shares issued hereunder may be sold, transferred,
pledged or hypothecated (collectively, "Transferred") to any third party.
Any certificate for any Warrant Shares issued hereunder shall be stamped or
otherwise imprinted with legends in substantially the form of the legends
contained on the first page hereof.
3.2 Mechanics of Transfers. Subject to satisfaction of the
conditions set forth in Section 3.1, this Warrant and all rights hereunder
are transferable, in whole or in part, on the books of the Company to be
maintained for such purpose, upon surrender of this Warrant at the office
of the Company, together with a written assignment of this Warrant duly
executed by the Holder or its agent or attorney. Upon such surrender, the
Company shall execute and deliver a new Warrant or Warrants in the name of
the assignee or assignees and in the denominations specified in such
instrument of assignment, and this Warrant shall promptly be canceled. This
Warrant, if properly Transferred in compliance with this Section 3, may be
exercised by an assignee for the purchase of Warrant Shares without having
a new Warrant issued.
SECTION 4. ADJUSTMENT OF WARRANT SHARES; ANTI-DILUTION PROVISIONS.
------------------------------------------------------
If any of the following events occurs at any time hereafter prior
to the full exercise of this Warrant, then the Exercise Price and/or the
number of Warrant Shares remaining to be purchased hereunder immediately
prior to such event shall be adjusted as described below:
4.1 Redemptions and Repurchases. If at any time there is a pro
rata (based upon the shares of Class A Common Stock or Class T Common Stock
to be redeemed or repurchased) redemption or repurchase of the Class A
Common Stock or Class T Common Stock and if either (i) the Federal
Communications Commission (or other governmental entity that replaces it)
issues a ruling, the effect of which permits the Holder to receive on a
current basis a payment as if the Warrant Shares remaining to be purchased
hereunder were outstanding or (ii) the Company obtains an unqualified
opinion from counsel specializing in federal communications law, reasonably
acceptable to the Holder, that the Holder may receive on a current basis a
payment as if the Warrant Shares remaining to be purchased hereunder were
outstanding, then the Holder can elect that the number of Warrant Shares
remaining to be purchased hereunder shall be decreased by a percentage
equal to the percentage of Class A Common Stock or Class T Common Stock so
redeemed or repurchased and upon the date of such redemption or repurchase,
the Company shall pay to the Holder an amount equal to the number of shares
by which the Warrant has been decreased multiplied by the difference, if
any, between the redemption or repurchase price and the Exercise Price for
such shares (adjusted proportionately in accordance with Section 4.2).
4.2 Stock Subdivisions, Stock Dividends or Stock Consolidations.
If at any time the outstanding shares of Class A Common Stock, Class P
Common Stock, Class T Common Stock, and Class V Common Stock are subdivided
into a greater number of shares, whether by stock split, stock dividend or
otherwise, then the Exercise Price will be reduced proportionately and the
number of Warrant Shares remaining to be purchased hereunder, will be
increased proportionately. Conversely, if at any time the outstanding
shares of Class A Common Stock, Class P Common Stock, Class T Common Stock,
and Class V Common Stock are consolidated into a smaller number of shares,
then the Exercise Price will be increased proportionately and the number of
Warrant Shares remaining to be purchased hereunder, will be reduced
proportionately. Each adjustment to the Exercise Price and the number of
Warrant Shares shall be effective on the record date, or if there is no
record date, the effective date for such subdivision or consolidation.
4.3 Consolidation, Merger or Sale of Assets. If the Company shall
at any time (i) consolidate with or merge into another corporation or other
entity or (ii) merge with another corporation or other entity and be the
surviving corporation in such merger, and in connection therewith all or
part of the Class A Common Stock shall be changed into or exchanged for
securities of any other entity or cash or other property, the Holder of
this Warrant will thereafter receive, upon the exercise hereof in
accordance with the terms hereof, the securities, cash or other property to
which the holder of the number of shares of Common Stock then deliverable
upon the exercise of this Warrant would have received upon such
consolidation or merger, and the Company shall take such steps in
connection with such consolidation or merger as may be necessary to assure
that the provisions thereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities or property thereafter
deliverable upon the exercise of this Warrant. The Company or the successor
corporation, as the case may be, shall execute and deliver to the Holder a
supplemental Warrant so providing. A sale of all or substantially all the
assets of the Company for a consideration (apart from the assumption of
obligations) consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes. The provisions of this
Section 4.3 similarly shall apply to successive mergers or consolidations
or sales or other transfers.
4.4 Dividends.
(a) If the Company proposes to declare a dividend on or make a
distribution with respect to the Class A Common Stock, whether in
cash, property or securities, the Company will deliver written
notice of such proposed event, in reasonable detail, to the
Holder not less than fifteen (15) days prior to the record date
for such dividend or distribution.
(b) If the Company declares a cash dividend on the Class A Common
Stock and either (i) the Federal Communications Commission (or
other governmental entity that replaces it) issues a ruling, the
effect of which permits the Holder to receive on a current basis
a cash dividend as if the Warrant Shares remaining to be
purchased hereunder were outstanding or (ii) the Company obtains
an unqualified opinion from counsel specializing in federal
communications law, reasonably acceptable to the Holder, that the
Holder may receive on a current basis a cash dividend as if the
Warrant Shares remaining to be purchased hereunder were
outstanding, then the Holder shall receive on a current basis any
such cash dividend as if the Warrant Shares remaining to be
purchased hereunder were outstanding.
(c) If the Company makes a distribution of property or securities
other than Class A Common Stock with respect to the Class A
Common Stock and either (i) the Federal Communications Commission
(or other governmental entity that replaces it) issues a ruling,
the effect of which permits the Holder to receive on a current
basis a cash dividend as if the Warrant Shares remaining to be
purchased hereunder were outstanding or (ii) the Company obtains
an unqualified opinion from counsel specializing in federal
communications law, reasonably acceptable to the Holder, that the
Holder may receive on a current basis a cash dividend as if the
Warrant Shares remaining to be purchased hereunder were
outstanding, then the Company shall engage an independent
investment bank, reasonably acceptable to the Holder, to
determine the fair market value of such property so distributed
on each Class A Share. The Company shall pay a cash dividend in
the manner specified in Section 4.4(b) equal to such cash amount.
4.5 Notices. When any adjustments are required to be made under
this Section 4, the Company shall as promptly as practicable (i) determine
such adjustments, (ii) prepare a statement describing in reasonable detail
the method used in arriving at the adjustment and setting forth the
calculation thereof; and (iii) cause a copy of such statement to be mailed
to the Holder.
4.6 Computations and Adjustments. Upon each computation of an
adjustment under this Section 4, the Exercise Price shall be computed to
the nearest 1/1000 cent and the number of Warrant Shares shall be
calculated to the nearest whole share (i.e., fractions of less than
one-half shall be disregarded and fractions of one-half or greater shall be
treated as being the next greater integer). However, the fractional amount
shall be used in calculating any future adjustments.
SECTION 5. SECURITIES LAWS. The Holder of this Warrant, by
---------------
acceptance hereof, acknowledges that this Warrant and the Warrant Shares
which may be issued pursuant thereto have not been registered under the
Securities Act, or applicable state securities laws. The Holder of this
Warrant, by acceptance hereof, represents that it is fully informed as to
the applicable limitations upon any distribution or resale of the Warrant
Shares under the Securities Act or any applicable state securities laws and
agrees not to distribute or resell any Warrant Shares if such distribution
or resale would constitute a violation of the Securities Act or any
applicable state securities laws or would cause the issuance by the Company
of the Warrant or the Warrant Shares to be in violation of the Securities
Act or any applicable state securities laws. The Holder agrees that all
certificates representing Warrant Shares will carry an appropriate legend
substantially in the form of the first legend contained on the first page
hereof. Any exercise hereof by the Holder shall constitute a representation
by the Holder that the Warrant Shares are not being acquired with the view
to, or for resale in connection with, any distribution or public offering
thereof in violation of the Securities Act or applicable state securities
laws.
SECTION 6. NO VOTING RIGHTS. This Warrant shall not entitle the
holder hereof to any voting rights or other rights as a stockholder of the
Company.
SECTION 7. RESERVATION OF WARRANT SHARES. The Company has
reserved and will keep available, out of the authorized and unissued shares
of Common Stock, the full number of shares sufficient to provide for the
exercise of the rights of purchase represented by this Warrant. Upon
issuance and delivery against payment pursuant to the terms of this
Warrant, all Warrant Shares will be validly issued, fully paid and
nonassessable.
SECTION 8. LOSS, DESTRUCTION OF WARRANT. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity satisfactory to the Company or,
in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Company will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same aggregate number of shares of
Common Stock.
SECTION 9. MISCELLANEOUS PROVISIONS.
------------------------
9.1 Amendments. The terms of this Warrant may be amended, and the
observance of any term herein may be waived, but only with the written
consent of the Holder and the Company. If at any time this Warrant is split
into multiple Warrants, any consent to be given by the Holder with respect
to any amendment hereto shall be made by the Holders of Warrants
exercisable for a majority of the unissued Warrant Shares, provided that no
amendment may change the number of Warrant Shares or the Exercise Price
without the written consent of the Holders of all of the Warrants.
9.2 Jurisdiction; Venue; Service of Process. The Company and the
Holder each 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 Warrant 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 000 Xxxx 0xx Xxxxxx, Xxx Xxxxxxx, XX
00000 as its agent to receive on behalf of it and 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, 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 such process to such party at its
address specified in or pursuant to Section 9.3. 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.
9.3 Notices. 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 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 follows:
(i) If to the Company:
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: C. Xxxxxxx Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx
1999 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
(ii) If to the Holder:
[ ]
c/o Xxxxxx Xxxxx
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
or to such other addresses as may be specified by like notice to the other
parties.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed in its name by its President or a Vice President.
Dated:
UNIVISION COMMUNICATIONS INC.
By:
----------------------------------
Name:
Title:
EXHIBIT A
CASHLESS EXERCISE FORM
The undersigned Holder exercises the right to purchase _________
Warrant Shares, evidenced by the enclosed Warrant and requests that the
Company exchange the Warrant for Warrant Shares as provided in SECTION 2.2
of the Warrant. Certificate(s) for such shares are to be issued and
delivered as set forth below.
Date:
----------------------
HOLDER
By:
------------------------
Its:
------------------------
Name to appear on
the stock certificate:
---------------------------
(Please Print)
Address: --------------------------- Employer Identification Number, Social
--------------------------- Security Number or other identifying
number:
-----------------
If the foregoing exercise is not for all of the Warrant Shares purchasable
under the Warrant, please register and deliver a new Warrant for the
unexercised portion as follows:
Name: ---------------------------
(Please Print)
Address: --------------------------- Employer Identification Number, Social
--------------------------- Security Number or other identifying
number:
-----------------
Calculation of Cashless Exercise:
A = Current Market Price:---------------
B = Exercise Price:---------------------
X = Number of shares of Common Stock to be issued for each right to
purchase one Warrant Share exchanged:
----------
A - B ( )
------
1 x = X ( )
------------------ ---------
A ( )
---------------
Total number of Warrant Shares issuable:
-------------------------------------
Total number of Warrant Shares to be issued:
---------------------------------
