EXHIBIT 10.23
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement") is made as of __________,
2000 (the "Effective Date"), by and among Entravision Communications
Corporation, a Delaware corporation (the "Corporation"), the former holders of
Common Stock of Z-Spanish Media Corporation, a Delaware corporation ("ZSPN")
listed on Exhibit "A" hereto (the "ZSPN Stockholders"), Univision Communications
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Inc. ("Univision"), and the other stockholders other than Univision of the
Corporation listed on Exhibit "A" hereto (the "Founders").
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WHEREAS, the Corporation, its wholly-owned subsidiary, ZSPN Acquisition
Corporation, Entravision Communications Company, L.L.C., ZSPN and the ZSPN
Stockholders are parties to that certain Acquisition Agreement and Plan of
Merger dated April ____, 2000 pursuant to which the Corporation has acquired
ZSPN and the ZSPN Stockholders have received shares of Class A Common Stock of
the Corporation.
WHEREAS, the Founders and Univision are holders of Class A Common Stock,
Class B Common Stock and Class C Common Stock of the Corporation received in
connection with an incorporation transaction pursuant to the terms of that
certain Exchange Agreement dated April 19, 2000, by an among the Corporation,
the Company, the Founding Stockholders and other members of the Company.
WHEREAS, the Corporation desires to grant to the Holders (as defined below)
certain registration rights as set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Registration Rights. The Corporation covenants and agrees as follows
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(capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Purchase Agreement):
1.1. Definitions. For purposes of this Section 1:
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1.1.1. The term "1934 Act" means the Securities Exchange Act of
l934, as amended.
1.1.2. The term "Act" means the Securities Act of 1933, as
amended.
1.1.3. The term "Closing" has the meaning ascribed to it in the
Merger Agreement.
1.1.4. The term "Common Stock" refers collectively to both the
Class A Common Stock and Class B Common Stock of the Corporation.
1.1.5. The term "Demand Holder" shall mean the Holders other
than Xxxxxx X. Xxxxxx, Xxxxxx Asset Management, L.L.C., Xxxx X. Xxxxxx, Xxxxxxxx
X. Xxxxxx, Xxxxx Xxxxx, Xxxx X. Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxxx
Xxxx, Xxxxx Xxxxxxx and Xxxxxx Xxxxxxxx.
1.1.6. The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Corporation with the
SEC.
1.1.7. The term "Founders Registrable Securities" means (i)
Common Stock currently held by the Founders as specified on Exhibit "A", and
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(ii) any Common Stock of the Corporation issued as (or issuable upon the
conversion or exercise of any warrants right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in clause (i) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which such person's right under this Section 1 are not duly assigned as provided
herein or any Registrable Securities after such securities have been sold to the
public or sold pursuant to Rule 144 promulgated under the Act.
1.1.8. The term "Holder" means the ZSPN Stockholders,
Univision, the Founders and their respective permitted successors and assigns.
1.1.9. The terms "register," registered and registration refer
to a registration effected by preparing and filing, a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document by the SEC.
1.1.10. The term "Registrable Securities" means the Founders
Registrable Securities and the ZSPN Registrable Securities.
1.1.11. The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, Registrable Securities.
1.1.12. The term "SEC" shall mean the Securities and Exchange
Commission.
1.1.13. The term "ZSPN Registrable Securities" means (i) the
Common Stock currently held by ZSPN Stockholders as a result of the Merger as
specified on Exhibit "A" and (ii) any Common Stock of the Corporation issued as
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(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of the shares referenced in
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clause (i) above, excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which such person's rights under this
Section 1 are not duly assigned as provided herein or any Registrable Securities
after such securities have been sold to the public or sold pursuant to Rule 144
promulgated under the Act.
1.2. Request for Registration.
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1.2.1. Registration Rights. If the Corporation shall receive
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at any time after one (1) year after the effective date of the first
registration statement for a public offering of securities of the Corporation
(other than a registration statement relating either to the sale of securities
to employees of the Corporation pursuant to a stock option, stock purchase or
similar plan), a written request from the holders of a majority of the ZSPN
Registrable Securities, the holders of a majority of the Founders Registrable
Securities, or Univision ("Initiating Holders"), requesting that the Corporation
file a registration statement under the Act covering the registration of
Registrable Securities with an anticipated aggregate offering price, net of
underwriting discounts and commissions, of at least $20 million, then the
Corporation shall:
(a) within twenty (20) days of the receipt
thereof, give written notice of such request to all Holders; and
(b) use reasonable and diligent efforts to
cause such shares to be registered under the Act as soon as practicable, subject
to the limitations of subsection 1.2.2.
1.2.2. Underwriting: Requirements. If the Initiating Holders
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intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Corporation as a part of
their request made pursuant to subsection 1.2.1 and the Corporation shall
include such information in the written notice referred to in subsection 1.2.1.
The underwriter will be selected by the Corporation from the lead underwriters
in its initial public offering or from another investment banking firm of
national repute and shall be reasonably acceptable to a majority in interest of
the Initiating Holders. In such event, the right of any Holder or other holder
of securities of the Corporation to include securities in such registration
shall be conditioned upon such Holder's or holders' participation in such
underwriting and the inclusion of such Holder's or holders' securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder or holder) to the extent provided herein. All
Holders and other holders of securities of the Corporation proposing to
distribute their securities through such underwriting shall (together with the
Corporation as provided in subsection 1.5.5) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this Section 1.2, if
the underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Corporation shall so advise all Holders of Registrable Securities and other
holders of registration rights which would otherwise be
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underwritten pursuant hereto, and the number of securities that may be included
in the underwriting on behalf of each Holder or other holder shall be allocated
on a pro-rata basis among the selling stockholders according to the total number
of securities held by each such selling stockholder and entitled to inclusion
therein on the basis of a registration rights agreement with the Corporation;
provided, however, that the numbers of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting and registration. For purposes
of allocating securities to be included in any offering, for any selling
stockholder which is a partnership or corporation, the "affiliates" (as defined
in Rule 405 under the Act), partners, retired partners and stockholders of such
holder (and in the case of a partnership, any affiliated partnerships), or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling stockholder," and any pro-rata reduction with respect to such
"selling stockholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling stockholder," as defined in this sentence. To facilitate the
allocation of shares in accordance with the above provisions, the Corporation
may round the number of shares allocated to any Holder to the nearest 100
shares.
1.2.3. Notwithstanding the foregoing, if the Corporation shall
furnish to Demand Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the President of the Corporation stating
that in the good faith judgment of the Board of Directors of the Corporation, it
would be seriously detrimental to the Corporation and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Corporation shall have the right to
defer taking action with respect to such filing for a period of not more than
ninety (90) days after receipt of the request of the Initiating Holders;
provided, however, that the Corporation may not utilize this right more than
once in any twelve-month period.
1.2.4. In addition, the Corporation shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(a) With respect to the ZSPN Stockholders, after the
Corporation has effected one (1) such registration pursuant to Section 1.2 in
which the ZSPN Stockholders were the majority of the Initiating Holders and such
registration has been declared or ordered effective.
(b) With respect to the Founders, after the
Corporation has effected two (2) such registrations pursuant to Section 1.2 in
which the Founders were the majority of the Initiating Holders and such
registrations have been declared or ordered effective.
(c) With respect to Univision, after the Corporation
has effected one (1) such registration pursuant to Section 1.2 in which
Univision was the Initiating Holder.
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(d) During the period starting with the date sixty
(60) days prior to the Corporation's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective date
of, (x) the Corporation's initial registered offering of its securities to the
general public (other than a registration statement relating to either the sale
of securities to employees of the Corporation pursuant to a stock option, stock
purchase or similar plan), (y) a previous registration subject to this Section
1.2 or (z) a previous registration subject to Section 1.3 hereof; provided,
that, the Corporation is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective;
(e) In any particular jurisdiction in which the
Corporation would be required to execute a general consent to service of
process, unless the Corporation is already subject to service in such
jurisdiction and except as required by the Act; or
(f) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
1.3. Corporation Registration.
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1.3.1. Registration Rights. If (but without any obligation
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to do so) the Corporation proposes to register (including for this purpose a
registration effected by the Corporation for stockholders other than the
Holders) any of its stock or other securities under the Act in connection with
the public offering of such securities solely for cash (other than the initial
public offering of its securities or a registration relating solely to the sale
of securities to participants in a Corporation stock plan, a registration on any
form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Corporation shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within fifteen (15) days after mailing of such notice by the
Corporation in accordance with Section 4.5, the Corporation shall, subject to
the provisions of paragraph 1.3.2 below, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered.
1.3.2. Underwriting Requirements. In connection with any
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offering involving an underwriting of shares of the Corporation's capital stock
other than its initial public offering, the Corporation shall not be required
under this Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Corporation and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Corporation. If the total amount of securities, including
Registrable Securities, requested by stockholders to be
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included in such offering exceeds the amount of securities sold other than by
the Corporation that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Corporation shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering. Allocation of
securities to be sold in any such offering shall be made on a pro-rata basis
among the selling stockholders according to the total number of securities held
by each such selling stockholder and entitled to inclusion therein on the basis
of a registration rights agreement with the Corporation. For purposes of
allocation of securities to be included in any offering now or hereafter entered
into, for any selling stockholder which is a partnership or corporation, the
"affiliates" (as defined in Rule 405 under the Act), partners, retired partners
and stockholders of such holder (and in the case of a partnership, any
affiliated partnerships), or the estates and family members of any such partners
and retired partners and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "selling stockholder," and any pro-rata
reduction with respect to such "selling stockholder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "selling stockholder," as defined in this
sentence.
1.4. Form S-3 Registration. In case the Corporation shall receive
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from any Holder or Holders of ZSPN Registrable Securities a written request or
requests that the Corporation effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Corporation will:
1.4.1. promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
1.4.2. as soon as practicable, effect such registration and
all such qualifications and compliance as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within fifteen (15) days after receipt of such written notice from the
Corporation; provided, however, that the Corporation shall not be obligated to
effect any such registration, qualification or compliance, pursuant to this
Section 1.4: (1) if the Registrable Securities requested by all Holders to be
registered pursuant to this Section 1.4 have an anticipated aggregate offering
price to the public (before deducting any underwriter discounts, concessions or
commissions) of less than $1,000,000; (2) if Form S-3 is not available for such
offering by the Holders; (3) if the Corporation shall furnish to the Holders a
certificate signed by the President of the Corporation stating that in the good
faith judgment of the Board of Directors of the Corporation, it would be
seriously detrimental to the Corporation and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Corporation shall
have the right to defer the filing of the Form S-3 registration statement for a
period of not more
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than ninety (90) days after receipt of the request of the Holder or Holders
under this Section 1.4; provided, however, that the Corporation shall not
utilize this right more than twice in any twelve-month period; (4) if the
Corporation has, within the twelve (12) month period preceding the date of such
request, already effected one (1) or more registrations on Form S-3 pursuant to
this Section 1.4; or (5) in any particular jurisdiction in which the Corporation
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
1.4.3. Subject to the foregoing, the Corporation shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as demands for registration pursuant to
Sections 1.2.
1.5. Obligations of the Corporation. Whenever required under this
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Section 1 to effect the registration of any Registrable Securities, the
Corporation shall, as expeditiously as reasonably possible:
1.5.1. Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of up to ninety (90) days or
until the distribution contemplated in the Registration Statement has been
completed; provided, however, that such 90-day period shall be extended for a
period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of the Corporation.
1.5.2. Prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
1.5.3. Furnish (at no cost) to the Holders such numbers of
copies of a prospectus, including a preliminary prospectus and of each amendment
and supplement thereto, in conformity with the requirements of the Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
1.5.4. Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that the Corporation shall not be required in connection
therewith or as a condition thereto to qualify to do business
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or to file a general consent to service of process in any such states or
jurisdictions.
1.5.5. In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and performs its
obligations under such an agreement.
1.5.6. Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an 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 not misleading in the light of the circumstances then existing.
1.5.7. Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Corporation are then listed.
1.5.8. Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.5.9. In the event of any underwritten public offering,
cooperate with the selling Holders, the underwriters participating in the
offering and their counsel in any due diligence investigation reasonably
requested by the selling Holders or the underwriters in connection therewith,
and participate, to the extent reasonably requested by the managing underwriter
for the offering or the selling Holder, in efforts to sell the Registrable
Securities under the offering (including, without limitation, participating in
"roadshow" meetings with prospective investors at reasonable times) that would
be customary for underwritten primary offerings of a comparable amount of equity
securities by the Corporation.
1.5.10. Notify each Holder of Registrable Securities covered by
such registration statement: (i) when such registration statement or any post-
effective amendment to the registration statement has been declared effective by
the SEC, (ii) of any request by the SEC for amendments or supplements to such
registration statement or prospectus or for additional information; and (iii) of
the receipt by the Corporation of any notification from any public board or body
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose.
1.5.11. Notify each Holder of Registrable Securities of the
issuance of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose and the
Corporation shall use its reasonable best efforts to prevent the issuance of any
stop order, or if any order is issued, to obtain the withdrawal thereof.
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1.5.12. Take all actions necessary to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legend)
representing the Registrable Securities and the transfer thereof upon resale by
the Holder of such Registrable Securities in accordance with the applicable
prospectus.
1.5.13. Otherwise use its reasonable and diligent efforts in
performance of its obligations hereunder to comply with all applicable rules and
regulations of the SEC and of state securities commissions and any stock
exchange or automated quotation system.
1.6. Furnish Information.
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1.6.1. It shall be a condition precedent to the obligations of
the Corporation to take any action pursuant to this Section 1 with respect to
the Registrable Securities of any selling Holder that such Holder shall furnish
to the Corporation such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
be required to effect the registration of such Holder's Registrable Securities.
1.6.2. The Corporation shall have no obligation with respect
to any registration requested pursuant to Section 1.2 or Section 1.4 if, due to
the operation of subsection 1.6. 1, the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Corporation's
obligation to initiate such registration as specified in subsection 1.2.1 or
subsection 1.4.2, whichever is applicable.
1.7. Expenses of Demand, Corporation or S-3 Registration. All
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expenses (exclusive of underwriting discounts and commissions and stock transfer
taxes) incurred in connection with registrations, filings or qualifications
pursuant to this Section 1 including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Corporation and the reasonable fees and
disbursements of one counsel for all selling Holders of ZSPN Registrable
Securities and one counsel for all selling Holders of Founders Registrable
Securities shall be bome by the Corporation.
1.8. Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.9. Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
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1.9.1. To the extent permitted by law, the Corporation will
indemnify and hold harmless each Holder, the constituent partners and members,
or officers, directors and employees of each Holder, and, if such Holder is a
natural person, his or her heirs, personal representatives and assigns, and any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the 1934
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Corporation of the Act, any rule or
regulation promulgated under the Act, the 1934 Act or any state securities law;
and the Corporation will pay to each such Holder, underwriter or controlling
person any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action, as such expenses are incurred; provided, however, that the indemnity
agreement contained in this subsection 1.9.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Corporation (which consent
shall not be unreasonably withheld), nor shall the Corporation be liable in any
such case for any such loss, claim, damage, liability, or action to the extent
that it arises out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information fumished expressly for use in
connection with such registration by any such Holder, underwriter or controlling
person; provided, further, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder or
underwriter, or any person controlling such Holder or underwriter, from whom the
person asserting such losses, claims, damages, or liabilities purchased shares
in the offering, if a copy of the prospectus (as then amended or supplemented if
the Corporation shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Holder or 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
loss, claim, damage or liability.
1.9.2. To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Corporation, each of its directors, each of
its officers who has signed the registration statement, each person, if any, who
controls the Corporation within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, severally but not
jointly, against any losses, claims, damages, or liabilities joint or several)
to which any of the foregoing persons may become subject, under the Act, the
1934 Act or other federal or state law, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereto) arise
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out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.9(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 1.9.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, that, in no event shall Holder's
cumulative, aggregate liability under this subsection 1.9.2, under Section
1.9.4, or under such sections together, exceed the net proceeds received by such
Holder from the offering out of which such Violation arises.
1.9.3. Promptly after receipt by an indemnified party under
this Section l.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with one counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 1.9 except to the extent the failure to
deliver notice prejudices its ability to defend such action. Any omission to so
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.9.
1.9.4. If the indemnification provided for in this Section 1.9
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand, and of the indemnified party on the other,
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue
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or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
1.9.5. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control. In addition, any indemnity agreements contained herein
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made or omitted by or on behalf of any indemnified party.
1.9.6. The obligations of the Corporation and Holders under
this Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10. Reports under Securities Exchange Act of 1934. With a view to
---------------------------------------------
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Corporation to the public without registration
or pursuant to a registration on Form S-3, the Corporation agrees to:
1.10.1. make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Corporation for the offering of its securities to the general public;
1.10.2. take such action, including the voluntary registration
of its Common Stock under Section 12 of the 1934 Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Corporation for the
offering of its securities to the general public is declared effective;
1.10.3. file with the SEC in a timely manner all reports and
other documents required of the Corporation under the Act and the 1934 Act; and
1.10.4. furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Corporation that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Corporation), the Act and the 1934 Act (at
any time after it has become subject to such reporting requirements), or that it
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qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Corporation and such other reports and documents so
filed by the Corporation, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to
such form.
1.11. Assignment of Registration Rights. The rights to cause the
---------------------------------
Corporation to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to, (i) in the case
of any Holder that is a partnership, limited liability company or corporation,
any current and former constituent partners, members, stockholders, affiliate
funds and affiliates of that Holder, or (ii) in the case of any Holder, (x) a
transferee or assignee of such securities who, after such assignment or
transfer, holds at least twenty percent (20%) of the Holder's shares (as
appropriately adjusted for all stock splits, dividends, combinations,
reclassifications and other like transactions) of the Registrable Securities
originally held by such transferring Holder, (y) a transferee or assignee who is
a spouse, lineal descendant, adopted child, father, mother, brother or sister
(each, a "Family Member") of Holder or (z) or to a trust, the beneficiaries of
which are exclusively the Holder and/or Family Members, provided, in each case,
that: (a) the Corporation is, within a reasonable time after such transfer,
fumished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; (b) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement, including without
limitation the provisions of Section 1.12 below; and (c) such assignment shall
be effective only if immediately following such transfer the further disposition
of such securities by the transferee or assignee is restricted under the Act.
For the purposes of determining the number of shares of Registrable Securities
held by a transferee or assignee of a holder of Registrable Securities, the
holdings of "affiliates" (as defined in Rule 405 under the Act) of such holder,
affiliated partnerships, constituent or retired partners of such partnerships
(as well as Family Members of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with such partnership and its affiliated partnerships and other entities;
provided, that, all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under this Section 1.
1.12. "Market Stand-Off" Agreement. Each Holder hereby agrees that,
----------------------------
during the period of duration specified by the Corporation and an underwriter of
common stock or other securities of the Corporation, following the effective
date of the registration statement of the Corporation filed under the Act
relating to its initial public stock offering, it shall not, to the extent
requested by the Corporation and such underwriter, directly or indirectly sell,
offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any Registrable Securities of the
Corporation held by it at any time during such period except common stock
included in such registration; provided, however, that:
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1.12.1. all officers and directors of the Corporation shall
have entered into similar agreements;
1.12.2. the Corporation uses its best efforts to obtain from
persons who hold greater than five percent (5%) of the Corporation's outstanding
capital stock, a lock-up agreement similar to that set forth in this Section
1.12; and
1.12.3. such market stand-off time period shall not exceed
ninety (90) days (or such period as reasonably requested by the Corporation's
underwriters).
Each Holder agrees to provide to the other underwriters of any public
offering in which such Holder is selling Registrable Securities such further
agreements as such underwriter may reasonably request in connection with this
market stand-off agreement, provided that the terms of such agreements are
substantially consistent with the provisions of this Section 1.12. In order to
enforce the foregoing covenant, the Corporation may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.12 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction.
1.13. Termination of Registration Rights. The right of any Holder to
----------------------------------
request registration or to include Registrable Securities in any registration
pursuant to this Section 1 shall terminate upon the earlier of (i) the date
which is five (5) years after the date immediately prior to the closing of the
initial public offering of the Corporation's Common Stock, or (ii) such date as
a public trading market shall exist for the Corporation's Common Stock and all
shares of Registrable Securities beneficially owned and subject to Rule 144
aggregation by such Holder may immediately be sold under Rule 144 (without
regard to Rule 144(k)) during any 90-day period, provided that such Holder is
not then an "affiliate" of the Corporation within the meaning of Rule 144 and
such Holder owns less than I% of the then outstanding shares of Common Stock.
1.14. Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Corporation shall not, without the prior written
consent of the Holders of at least a majority of the ZSPN Registrable Securities
and a majority of the Founders Registrable Securities then outstanding, enter
into any agreement with any Holder or prospective holder of any securities of
the Corporation granting registration rights with respect to such securities,
unless under the terms of such agreement or as expressly provided in this
Agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of his securities will
not reduce the amount of the Registrable Securities of the Holders which is
included.
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1.15. Co-Sale Rights.
--------------
1.15.1. Transfer Notice. If at any time a Founder proposes to
---------------
transfer shares of capital stock of the Corporation or rights, options or other
securities exercisable for or convertible into shares of capital stock of the
Corporation (directly or indirectly) whether or not such right or option or
other security is immediately exercisable or convertible (collectively, the
"Equity Securities") to any person or entity pursuant to an understanding with
such person or entity (a "Transfer"), then such Founder shall give the
Corporation and each Holder written notice of the Founder's intention to make
the Transfer (the "Transfer Notice"), which Transfer Notice shall include (i) a
description of the Equity Securities to be transferred (the Offered Equity
Securities"), (ii) the identity of the prospective transferee(s) and (iii) the
consideration and material terms and conditions upon which the proposed transfer
is to be made. The Transfer Notice shall include a copy of any written
proposal, term sheet or letter or intent or other agreement related to the
proposed Transfer.
1.15.2. Right to Participate. Each Holder which notifies the
--------------------
Founder proposing to make a transfer in writing within thirty (30) days after
receipt of the Transfer Notice shall have the right to participate in the sale
of the Equity Securities on the same terms and conditions as specified in the
Transfer Notice (such proposed terms and conditions, a "Purchase Officer"). To
the extent a Holder exercises such right of participation in accordance with the
terms and conditions set forth below, the number of Equity Securities that the
Founder may sell pursuant to such Purchase Offer shall be correspondingly
reduced. The right of participation of the Holders shall be subject to the
following terms and conditions.
(a) Each Holder may sell all or any part of that
number of Equity Securities equal to the product obtained by multiplying the
aggregate number of Holder Equity Securities covered by the Purchase Offer by a
fraction, (x) the numerator of which shall be the number of Equity Securities
(on an as-converted, as exercised fully-diluted basis) at the time owned by such
Holder and (y) the denominator of which shall be the number of shares of Equity
Securities (on an as-converted, as-exercised fully-diluted basis) at the time
owned by all Holders electing to participate in the sale and all Founders
participating in the sale.
(b) Each Holder may effect its participation in the
sale by delivering to the Founder, for transfer to the prospective transferee(s)
identified in the Transfer Notice, one or more certificates, properly endorsed
for transfer, that represents the number of Equity Securities that the Holder
elects to sell pursuant to this Section 1.15.
(c) To the extent that any prospective transferee(s)
identified in the Purchase Notice prohibit such exercise of co-sale rights or
otherwise refuse to purchase Equity Securities from a Holder exercising its co-
sale right hereunder, the Founder shall not sell to such prospective
transferee(s) any Equity Securities unless and until, simultaneously with such
sale, the Founder shall purchase such Equity Securities from such Holder for the
same consideration and on the same terms and conditions as the proposed transfer
described in the Transfer Notice.
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1.15.3. Mechanics of Transfer. The assignment or stock
---------------------
certificates that the Holders deliver to the Founder pursuant to this Section
1.15 shall be transferred by such Founder to the prospective transferee(s)
identified in the Transfer Notice in consummation of the sale of the Founder's
Equity Securities pursuant to the terms and conditions specified in the Transfer
Notice, and the Founder shall promptly thereafter remit to each of the Holders
participating in the sale that portion of the sale proceeds to which each Holder
is entitled by reason of its participation in such sale. In the event that less
than all the Equity Securities represented by such assignment separate from
certificate or the shares represented by such a stock certificate are sold
pursuant to this Section 1.15, the Founder shall instruct the Corporation to
issue a new certificate to the Holder representing the shares not sold.
1.15.4. No Effect on Subsequent Rights. The exercise or
------------------------------
non-exercise of the rights of any Holder hereunder to participate in one or more
sale of the Founder's Equity Securities made by a Founder shall not adversely
affect the Holder's rights to participate in subsequent sales of Equity
Securities by a Founder.
1.15.5. Termination. The provisions of this Section 1.15 shall
-----------
terminate and be of no further force or effect immediately prior to the closing
of a public offering of the Corporation's common stock with total gross offering
proceeds to the Corporation in excess of $50 million.
20 Miscellaneous.
-------------
2.1. Successors and Assigns. Except as otherwise provided herein,
----------------------
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
2.2. Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of Delaware, without regard
to conflicts of law provisions of the State of Delaware or any other state.
2.3. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
2.4. Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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2.5. Notices. Except as otherwise provided herein, all notices and
-------
other communications required or permitted hereunder shall be in writing, shall
be effective when given, and shall in any event be deemed to be given upon
receipt or, if earlier, (a) five (5) days after deposit with the U.S. Postal
Service or other applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business
day after the business day of deposit with Federal Express or similar overnight
courier, freight prepaid or (d) one (1) business day after the business day of
confirmed facsimile transmission, if delivered by facsimile transmission with
copy by first class mail, postage prepaid, and shall be addressed (i) if to a
Holder, at such Holder's address as set forth on Exhibit "A" hereto and (ii) if
-----------
to the Corporation, at the address of its principal corporate offices
(attention: Secretary), or at such other address as a party may designate by ten
(10) days' advance written notice to the other party pursuant to the provisions
above.
2.6. Expenses. Except as otherwise provided herein, if any action at
--------
law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
2.7. Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Corporation, the holders of
a majority of the ZSPN Registrable Securities then outstanding, and the holders
of a majority of the Founders Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Corporation.
2.8. Aggregation of Stock. All Shares held or acquired by entities,
--------------------
partnerships, former partnerships or "affiliates" (as defined in Rule 405 under
the Act) of a Holder or Family Members of such Holder, or trusts the
beneficiaries of which are affiliated entities or persons and/or Family Members
of such Holder (collectively, "Affiliates") shall be aggregated together for the
purpose of determining the availability or discharge of any rights of such
Holder under this Agreement. Any Affiliate or Affiliate group shall be entitled
to designate one person as representative of such group for the purpose of
exercising any right or undertaking any obligation of such group hereunder
(including without limitation voting any Shares held by any such Affiliate or
member of any such Affiliate group), and the Corporation shall be entitled to
rely on the representative for such purposes.
2.9. Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and
-17-
shall be enforceable in accordance with its terms.
2.10. Entire Agreement: Amendment: Waiver. This Agreement (including
-----------------------------------
the exhibits hereto, if any) constitutes the full and entire understanding and
Agreement between the parties with regard to the subjects hereof and thereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of the date first above written.
Corporation ENTRAVISION COMMUNICATIONS CORPORATION
By:
---------------------------------------------------------
Xxxxxx X. Xxxxx, Chairman and Chief Executive Officer
By:
---------------------------------------------------------
Xxxxxx X. Xxxxxxxxx, President and Chief Operating
Officer
Company ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
By:
---------------------------------------------------------
Xxxxxx X. Xxxxx, Chairman, Chief Executive Officer
and Managing Member
By:
---------------------------------------------------------
Xxxxxx X. Xxxxxxxxx, President, Chief Operating Officer
and Managing Member
ZSPN Z-SPANISH MEDIA CORPORATION
By:
---------------------------------------------------------
Name:
-------------------------------------------------------
Title:
------------------------------------------------------
[Counterpart Signature Page to Investor Rights Agreement]
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IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of the date first above written.
Individual ZSPN Investor Non-Individual ZSPN Investor
--------------------------------- ----------------------------------
Signature Print Company Name
By:
--------------------------------- -------------------------------
Print Name Signature
Address:
------------------------- ----------------------------------
Print Name and Title
---------------------------------
Address:
--------------------------
----------------------------------
[Counterpart Signature Page to Investor Rights Agreement]
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IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of the date first above written.
Founder
-----------------------------------------------
Signature
Print Name:
------------------------------------
[Counterpart Signature Page to Investor Rights Agreement]
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