CLOSING VERSION
INVESTMENT CONTRACT OF TELEVISA IN M/A AND IN
GESTORA DE INVERSIONES AUDIOVISUALES LA
SEXTA, S.A.
----------------------------------------------------
By and between
THE STOCKHOLDERS OF GRUPO ARBOL
THE STOCKHOLDERS OF MEDIAPRO B.V.
ARBOL PRODUCCIONES, S.A.
MEDIAPRODUCTIONS PROPERTIES, B.V.
THE MEMBERS OF M/A
M/A
SPV
AND
GRUPO TELEVISA, X.X.
Xxxxxx, March 26, 2006
(GARRIGUES LOGO)
Xxxxxxxxxx, 0 - 00000 Xxxxxx - Xxxxx - T+34 91 514 52 00 F+34 91 399 24 08
TABLE OF CONTENTS
IN SESSION 5
1. PRELIMINARY OBLIGATION 12
2. LINE OF CREDIT 13
3. OPTIONS FOR GAMP AND SPV 14
4. ASSUMPTION OPTION 14
5. STOCKHOLDER CONTROL, HOLDING AND INTENDED USE OF THE FUNDS 15
6. EXCLUSIVE NEGOTIATION RIGHT 17
7. RIGHT OF FIRST REFUSAL 21
8. NO COMPETITION 23
9. NO SOLICITATION 24
10. RIGHTS AS MINORITY STOCKHOLDER 25
11. MEMBERSHIP 25
12. CONDITION FOR RESCISSION 25
13. GENERAL 26
13.1 Expenses and Taxes 26
13.2 Cooperation 26
13.3 Notices 26
13.4 Entire Agreement; Amendments 26
13.5 Invalidity, Nullity and Partial Ineffectiveness 27
13.6 Non-Existence of Waiver 27
13.7 Declarations 27
14. COMPLIANCE AND RESCISSION 27
15. APPLICABLE LAW 28
2
16. JURISDICTION 28
17. ADDITIONAL PROVISION 28
3
LIST OF APPENDICES
APPENDIX G1 LA SEXTA STOCK PURCHASE AND PLACECITYSALE POLICY
APPENDIX G2: LA SEXTA STOCKHOLDER AGREEMENT
APPENDIX I: MERGER AGREEMENT
APPENDIX 1(B): AUDITED FINANCIAL STATEMENTS OF GRUPO ARBOL AND
MEDIAPRO B.V. FOR THE YEAR 2004, CONSOLIDATED
FINANCIAL STATEMENTS AS OF SEPTEMBER 30, 2005, FOR
EACH OF THE COMPANIES AND CONSOLIDATED PRO FORMA
FINANCIAL STATEMENTS FOR BOTH COMPANIES AS OF
DECEMBER 31, 2004, AND SEPTEMBER 30, 2005, AND
UPDATED CHART AS OF MARCH 26, 2006, WITH ALL
SUBSIDIARIES OF BOTH GROUPS
APPENDIX 1 (B) II.: ASSETS EXCEPTED FROM THE M/A MERGER
APPENDIX 2: TELEVISA ENGAGEMENT LETTER
APPENDIX 2 BIS: LINE OF CREDIT
APPENDIX 2 TER: GAMP PLEDGE CONTRACT
APPENDIX 2 QUATER: SPV PLEDGE CONTRACT
APPENDIX 3: SPV STOCK PURCHASE OPTION
APPENDIX 3 BIS: GAMP STOCK PURCHASE OPTION
APPENDIX 4: M/A HOLDINGS ASSUMPTION OPTION
APPENDIX 10: RIGHTS AS MINORITY STOCKHOLDER
APPENDIX 11: LETTER OF MEMBERSHIP
APPENDIX 13.3: NOTICES
4
IN SESSION
This contract is executed in Madrid on March 26, 2006, with the participation of
Xx. Xxxxxxxx Xxxxxx Xxxxxx, Notary in Madrid and a member of the College of
Notaries, by and between
I. AS PARTY OF THE FIRST PART,
MR. XXXXXX XXXXXX XXXXXXX, of legal age, with professional domicile in
Madrid at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, xx 00,000, and National
Identity Card D.N.I. 2.513.515-Y.
CARIBE MUSIC S.A. (hereinafter known as "CARIBE MUSIC"), a company
formed under the Laws of Spain, with Tax Identification Code (T.I.C.)
X-00000000 and company headquarters located at Xxxxxxxx Pidal 43.
CARIBE is represented herein by Mr. Xxxxxx Xxxxxx Xxxxxxx, with
National Identity Card/Tax Identification Number 2.513.515-Y, who
appears in his position as Chief Executive Officer, as demonstrated by
a copy of the Public Document issued before the Notary in Madrid, Xx.
Xxxxx Xxxxxx Xxxxxxxx, on December 27, 2001, under No. 3.070 of his
records.
XX. XXXXXX ECIJA XXXXXX, of legal age, with professional domicile in
Madrid at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, xx 00,000, and National
Identity Card 5.254.706-B.
PIPEN, S.L. (hereinafter known as "PIPEN"), a company formed under the
Laws of Spain, with Tax Identification Code (T.I.C.) X-00000000 and
company headquarters located at Xxxxx Xxxxxxxx, Xxxxxxx 000,
Xxxxxxxxxxxx Soto de Vinuelas, Tres Cantos (Madrid). PIPEN is
represented herein by Xx. Xxxxxx Ecija Xxxxxx, with National Identity
Card/Tax Identification Number 5.254.706-B, who appears in his position
as Sole Director, as demonstrated by a copy of the Public Document
issued before the Notary in Madrid, Mr. Xxxxxx Xxxxx Xxxxxx, on May 22,
1998, under No. 1.653 of his records.
MR. XXXX XXXXXX XXXXXXXXX XXXXXX, of legal age, with professional
domicile in Madrid at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, xx 00,000,
and National Identity Card 51.338.117-R.
JMC 2000, S.L. (hereinafter known as "JMC 2000"), a company formed
under the Laws of Spain, with Tax Identification Code (T.I.C.)
X-00000000 and company headquarters located at Xxxxx Xxxxxxxxxxx 0,
Xxxx Xxxxxx. JMC 2000 is represented herein by Mr. Xxxx Xxxxxx
Xxxxxxxxx Xxxxxx, with National Identity Card/Tax Identification Number
51.338.117-R, who appears in his position as Sole Director, as
demonstrated by a copy of the Public Document issued before the Notary
in Valencia, Xx. Xxxxxx Xxxxx Albalate, on December 18, 1998, under No.
3.477 of his records.
XX. XXXXXX XXXXXX ENTRECANALES, of legal age, with professional
domicile in Madrid at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, xx 00,000,
and National Identity Card 5.383.505-X.
MGVH 2000, S.L. (hereinafter known as "MGVH 2000"), a company formed
under the Laws of Spain, with Tax Identification Code (T.I.C.)
X-00000000 and
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company headquarters located at Calle C/Xxxxxxxxxx No. 9. MGVH 2000 is
represented herein by Xx. Xxxxxx Xxxxxx Entrecanales, with National
Identity Card/Tax Identification Number 5.383.505-X, who appears in his
position as Joint Director, as demonstrated by a copy of the Public
Document issued before the Notary in Madrid, Xx. Xxxxx Xxxxx de la
Colina, on February 27, 2003, under No. 705 of his records.
GAVEC CARTERA 24, S.L. (hereinafter known as "GAVEC CARTERA 24"), a
company formed under the Laws of Spain, with Tax Identification Code
(T.I.C.) X-00000000, with company headquarters located in Madrid, at
Carretera de Fuencarral a Alcobendas, km. 12,450. GAVEC CARTERA 24 is
represented herein by Mr. Xxxxxx Xxxxxx Xxxxxxx and Xx. Xxxxxx Xxxxxx
Entrecanales, with National Identity Cards/Tax Identification Numbers
2.513.515-Y and 5.383.505-X, who appear in their positions as Joint
Agents, as demonstrated by a copy of the Public Document issued before
the Notary in Madrid, Xx. Xxxxxxx Xxx-Ares Xxxxxxxxx, on May 25, 2005,
under No. 1.456 of his records.
XX. XXXXXXXX XXXXXX ARQUIMBAU XXXXX, of legal age, domiciled at Xxxxx
xx xxx Xxxxxxxx Xxxxxxxxx, Xx. 0, 0xx xxxxx, and National Identity Card
22.891.884-F.
XX. XXXXXX XXXXXXXX XXXXXXXX, of legal age, with professional domicile
in Madrid at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, xx 00,000, and
National Identity Card 5.352.874-S.
Mr. Xxxxxx Xxxxxx Xxxxxxx, Xx. Xxxxxx Ecija Xxxxxx, Mr. Xxxx Xxxxxx
Xxxxxxxxx Xxxxxx, Xx. Xxxxxx Xxxxxx Entrecanales, Xx. Xxxxxxxx Xxxxxx
Arquimbau Xxxxx, Xx. Xxxxxx Xxxxxxxx Xxxxxxxx, CARIBE MUSIC, PIPEN, JMC
2000, MGVH 2000 and GAVEC CARTERA 24 are hereinafter known as the
"STOCKHOLDERS OF THE GRUPO ARBOL".
II. AS PARTY OF THE SECOND PART,
MR. JAUME ROURES I LLOP, of legal age, with professional domicile in
Esplugues de Llobregat (Barcelona), at Xxxxx Xxxxxx Xxxxxxxx, Xx. 00,
0xx Xxxxx, Xxxxxxxx Imagina, and National Identity Card 37.259.141-S,
represented by Mr. Josep Xxxxx Xxxxx Ferran, by reason of the power of
attorney granted on March 24, 2006, before the Notary, Xx. Xxxxxx xx
Xxxxxx Xxxxxxxxx, in a public document with record number 2426.
MEDIACABLE SERVICIOS DE PRODUCCION, S.L. (hereinafter known as
"MEDIACABLE"), a company formed under the Laws of Spain, with Tax
Identification Code (T.I.C.) B-61948444 and company headquarters
located in Esplugues de Llobregat, at Xxxxx Xxxxxx Fabregas, No. 81,
represented herein by Mr. Josep Xxxxx Xxxxx Ferran, by reason of the
power of attorney granted on March 24, 2006, before the Notary, Xx.
Xxxxxx xx Xxxxxx Xxxxxxxxx, in a public document with record number
2425.
MR. JOSEP XXXXX XXXXX FERRAN, of legal age, with professional domicile
in Esplugues de Llobregat (Barcelona), at Xxxxx Xxxxxx Xxxxxxxx, Xx.
00, 0xx Xxxxx, Xxxxxxxx Imagina, and National Identity Card
40.857.318-A.
ATAS CORP, S.L. (hereinafter known as "ATAS CORP"), a company formed
under the Laws of Spain, with Tax Identification Code (T.I.C.)
X-00000000, with company headquarters located in Esplugues de
Llobregat, at Xxxxx Xxxxxx Fabregas, No. 81, represented herein by Mr.
Josep Xxxxx Xxxxx Ferran, with
6
National Identity Card No. 40.857.318-A, who appears as Sole Director,
appointed by reason of the public document issued on June 23, 2000, by
the Notary in Barcelona, Xx. Xxxxxxx X. Xxxxxxxx Xxxxxx, under No. 1814
of his records.
XX. XXXXXX XXXX XXXXXXX, of legal age, with professional domicile in
Esplugues de Llobregat (Barcelona), at Xxxxx Xxxxxx Xxxxxxxx, Xx. 00,
0xx Xxxxx, Xxxxxxxx Imagina, and National Identity Card 37.663.569-B.
MEDIAVIDEO, S.L. (hereinafter known as "MEDIAVIDEO"), a company formed
under the Laws of Spain, with Tax Identification Code (T.I.C.)
X-00000000, with company headquarters located in Barcelona, at Xxxxx
Xxxxxxxxx 0, represented herein by Xx. Xxxxxx Xxxx Xxxxxxx, with
National Identity Card No. 37.663.569-B, who appears as Sole Director,
appointed by reason of the public document issued on September 5, 2002,
by the Notary in Barcelona, Xx. Xxxxxxxxx Xxxxx Tordera, under No. 1360
of his records.
MEDIACAPITAL B.V. (hereinafter known as "MEDIACAPITAL"), a company
formed under the Laws of The Netherlands, with company headquarters
located at Xxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx (Xxx Xxxxxxxxxxx).
MEDIACAPITAL is represented herein by Xx. Xxxxxx Xxxx Xxxxxxx, with
National Identity Card No. 37.663.569-B, who appears in his position as
agent by reason of the power of attorney issued on March 23, 2006, by
the Notary Martijn Xxxxxx.
CAVENDISH SQUARE HOLDING B.V. (hereinafter known as "WPP"), a company
formed under the Laws of The Netherlands, with company headquarters
located at Prins Xxxxxxxxxxxxxx 0, 0000 XX Rotterdam (The
Netherlands).WPP is represented herein by Mr. Josep Xxxxx Xxxxx, in his
position as verbally-appointed agent.
WITGOUD INVESTMENTS B.C. (hereinafter known as "WITGOUD"), a
limited-liability company with headquarters at Xxxxxxxxxxxxx 00, 0000
XX Xxxxxxxxx Xxxxxxxx (Xxx Xxxxxxxxxxx), formed and duly existing under
and in accordance with the Laws of The Netherlands, with number
33068605 (hereinafter known as "WITGOUD"). Representing it, Mr. Josep
Xxxxx Xxxxx is acting in his position as agent, as demonstrated by a
copy of his Power of Representation legalized before the Notary in The
Netherlands, Mr. Martijn Xxxxxx, dated March 24, 2006, bearing the
appropriate apostille.
Mr. Jaume Roures i Llop, Mediacable, Xx. Xxxxxx Xxxxx Xxxxx Xxxxxx,
Atas Corp, Xx. Xxxxxx Romy Belillos, Mediavideo, MEDIACAPITAL, WPP and
WITGOUD shall hereinafter be known, jointly, as the "STOCKHOLDERS OF
MEDIAPRO B.V."
The Stockholders of the Grupo Arbol and the Stockholders of MediaPro
B.V. shall hereinafter be known, jointly as the "MEMBERS OF M/A."
III. AS PARTY OF THE THIRD PART,
ARBOL PRODUCCIONES, S.A. (hereinafter known as "GRUPO ARBOL"), a
company formed under the Laws of Spain, with Tax Identification Code
(T.I.C.) A-81/763492, with company headquarters located in Madrid, at
Carretera de Fuencarral a Alcobendas, km. 12,400. Grupo Arbol is
represented herein by Mr. Xxxx Xxxxxx Xxxxxxxxx Xxxxxx, with National
Identity Card/Tax Identification Number 51.338.117-R, who appears in
his position as Agent, by reason of the
7
powers conferred upon him by agreement of the Board of Directors, which
agreements were publicly recorded on June 17, 1997, by the Notary in
Madrid, Xx. Xxxxx Xxxxxx Xxxxxxxx, under No. 1604 of his records,
having been specially authorized for this act by reason of the company
approvals adopted by the meeting of the Board of Directors of the
above-named company held on March 26, 2006.
IV. AS PARTY OF THE FOURTH PART,
MEDIAPRODUCTION PROPERTIES B.V. (hereinafter known as "MEDIAPRO B.V."),
a company formed under the Laws of The Netherlands, with company
headquarters located at Xxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx (Xxx
Xxxxxxxxxxx). MediaPro B.V. is represented herein by Josep Xxxxx Xxxxx
Ferran, with National Identity Card No. 40.857.318-A, who appears in
his position as agent by reason of the power of attorney issued on
March 23, 2006, by the Notary Martijn Xxxxxx.
V. AS PARTY OF THE FIFTH PART,
Grupo Afinia, S.L. (hereinafter known as "MA"), a company formed under
the Laws of Spain, with company headquarters located in Esplugues de
Llobregat (Barcelona) at Xxxxx Xxxxxx Fabregas, 81. MA is represented
herein by Mr. Josep Xxxxx Xxxxx Ferran and Xx. Xxxxxx Xxxxxx
Entrecanales, with National Identity Cards/Tax Identification Numbers
40857.318-A and 5.383.505-X, respectively, who appear in their
positions as Joint Agents by reason of the powers conferred upon them
by the agreement of the Board of Directors, which agreements were
publicly recorded on March 24, 2006, by the Notary in Madrid, Xx.
Xxxxxxx Xxx-Ares Xxxxxxxxx under No. 783 of his records.
VI. AS PARTY OF THE SIXTH PART,
Inversiones Mediapro Arbol S.L. (hereinafter known as "SPV"), a company
formed under the Laws of Spain, with company headquarters located in
Madrid, at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, Xx, 00,000. SPV is
represented herein by Xx. Xxxxxx Xxxxxx Entrecanales and Xx. Xxxxx
Xxxxx Ferran, with National Identity Cards/Tax Identification Numbers
5.383.505-X and 40857.318-A, respectively, in their positions as Joint
Directors, to which positions they were appointed in the Charter of the
company issued on March 24, 2006, before the Notary in Madrid, Xx.
Xxxxxxx Xxx-Ares Xxxxxxxxx, under No. 788 of records, pending
registration.
VII. AS PARTY OF THE SEVENTH PART,
GRUPO TELEVISA, S.A. (hereinafter known as "TELEVISA"), a Mexican
company, with company headquarters at Xx. Xxxxx xx Xxxxxxx, Xx. 0,000,
Xxxxxxx Xxxxx Xx, 00000 Xxxxxx, F.D., formed in accordance with
document number 30.200, issued in Mexico City on December 19, 1990,
before Licenciado Francisco Xxxxxx Xxxxxxxxx Xxxxxxx, Notary Public,
Holder of Notary's Office No. 73 in Mexico City, the first copy of
which is recorded in the Commercial Registry under No. 142.164 of the
Public Property and Commerce Registry of the Federal District. Televisa
is represented herein by Xx. Xxxxx Xxxxxx Xxxxx Xxxxxxx and Xx. Xxxxxxx
Xxxxxxxxx Santa Xxxx, who appear and represent the company by reason of
the power of attorney granted by the Board of Directors of this company
on February 25, 2002, before Licenciado Xxxxxx Xxxxxx Xxxxxxxx Xxxx,
Notary Public, holder of Notary's Office No. 45 of the Federal
District, under No. 56.299,
8
apostille affixed on October 11, 2005, in conformity with the Treaty of
the Hague of 1961.
The Stockholders of Grupo Arbol, the Stockholders of MediaPro B.V., Grupo Arbol,
MediaPro B.V., the Members of M/A, M/A, SPV and Televisa shall be known
hereinafter, jointly, as the "PARTIES," and each of them individually as the
"PARTY."
The Parties declared and reciprocally recognize the legal capacity necessary to
execute this contract.
WHEREAS
A. The Stockholders of Grupo Arbol wholly own the stock in Grupo Arbol, as
shown in the table below.
STOCKHOLDERS OF GRUPO ARBOL NUMBER OF SHARES % OF AUTHORIZED CAPITAL
--------------------------- ---------------- -----------------------
Xxxxxx Xxxxxx Xxxxxxx 20,262 13.52
Caribe Music, S.A. 6,507 4.34
Xxxxxx Ecija Xxxxxx 20,262 13.52
Pipen, S.L. 6,507 4.34
Xxxx Xxxxxx Xxxxxxxxx Xxxxxx 6,064 4.05
JMC 2000, S.L. 20,705 13.82
Xxxxxx Xxxxxx Entrecanales 7,908 5.28
MGVH 2000, S.L. 18,861 12.59
GAVEC CARTERA 24, S.L. 35,965 24.00
Xxxxxxxx G(a)Arquimbau Xxxxx 3,647 2.43
Xxxxxx Xxxxxxxx Xxxxxxxx 3,167 2.11
TOTAL: 149,855 100%
B. All of the above shares were pledged to Banco de Sabadell, S.A., in
guarantee of the loan agreement of September 21, 2005, for a total
amount of 46,402,810.08 Euros, of which GAVEC Cartera 24, S.L. owes the
amount of 35,999,866.05 Euros (Tranche A).
C. After the M/A Merger, the Stockholders of MediaPro B.V. will, directly
or indirectly, wholly own the interests in MediaPro B.V., the parent
company of the group including Mediaproduccion, S.L. (company wholly
owned by MediaPro B.V., formed under the Laws of Spain, with Tax
Identification Code (T.I.C.) B-60.18.752, with company headquarters
located in Esplugues de Llobregat (Barcelona), Xxxxx Xxxxxx Fabregas i
Roses, No. 81, 3rd Floor, hereinafter known as "MEDIAPRO"). As of
today, MEDIACAPITAL wholly owns the authorized capital of MediaPro B.V.
9
D. Grupo Arbol and Mediapro hold 37.44% and 35.56%, respectively, of the
capital in GAMP Audiovisual, S.A. (hereinafter known as "GAMP"). GAMP
is a company formed under the Laws of Spain, with Tax Identification
Code (T.I.C.) A84434968, with company headquarters located in Madrid,
at Xxxxxxxxx xx Xxxxxxxxxx x Xxxxxxxxxx, xx. 00,000. The complete list
of stockholders of GAMP is given in the table below. The stock is free
of any lien or encumbrance.
STOCKHOLDERS OF GAMP NUMBER OF SHARES % OF AUTHORIZED CAPITAL
-------------------- ---------------- -----------------------
GRUPO ARBOL 74,879 37.44%
MEDIAPRO 71,135 35.56%
DRIVE ENTERTAINMENT, S.L. 20,002 10%
GABASCAR, S.A 20,002 10%
GRUP EMPRESARIAL EL XXXXXX, X.X. 14,002 7%
TOTAL: 200,020 100%
E. GAMP is a company intended solely to be a vehicle through which the
Grupo Arbol and MediaPro, together with other partners, hold 60% of
Gestora de Inversiones Audiovisuales La Sexta, S.A. (hereinafter known
as "LA SEXTA"). LA SEXTA is a company formed under the Laws of Spain,
with Tax Identification Code (T.I.C.) A-84/434935, with company
headquarters located in Madrid, at Xxxxxxxxx xx Xxxxxxxxxx x
Xxxxxxxxxx, xx. 00,000. The complete list of stockholders of La Sexta,
in accordance with the provisions of Statement G below, is given in the
table below. The stock is free of any lien or encumbrance.
STOCKHOLDERS OF LA SEXTA NUMBER OF SHARES % OF AUTHORIZED CAPITAL
------------------------ ---------------- -----------------------
GAMP 600,608 60%
Televisa 400,405 40%
TOTAL: 1,001,013 100%
F. LA SEXTA is the shell company created for participation in a public bid
for the award of a license for the operation of public television
service on a state level under the system of broadcasting on networks,
according to the Resolution of July 29, 2005, of the Secretary of State
for Telecommunications and the Information Society, published in the
B.O.E. of July 30, 2005 (hereinafter known as the "LICENSE") and the
operation thereof (hereinafter known as the "Project"), which bid it
won according to agreement of the Council of Ministers of November 25,
2005.
10
G. On October 14, 2005, Televisa acquired from GAMP stock in LA SEXTA,
making up 40% of the authorized capital thereof, by means of the stock
purchase and sale policy, a copy of which is appended as Appendix G1,
and, as of today, it signed a Stockholder Agreement with GAMP, Grupo
Arbol, MediaPro, M/A, SPV and LA SEXTA regulating, among other aspects,
the terms and conditions governing the relations among all the parties
thereto, among the stockholders of LA SEXTA, and among the latter and
LA SEXTA (hereinafter known as the "LA SEXTA STOCKHOLDER AGREEMENT", a
copy of which is appended as Appendix G2).
H. M/A is a company created for the purposes indicated in the following
statement. As of today, the interests in the full authorized capital of
M/A is given in the table below. The interests are free of any lien or
encumbrance.
MEMBERS OF M/A NUMBER OF INTERESTS % OF AUTHORIZED CAPITAL
-------------- ------------------- -----------------------
Xxxxxx Xxxxxx Xxxxxxx 3,245 5.41
Caribe Music, S.A. 1,042 1.74
Xxxxxx Ecija Xxxxxx 3,245 5.41
Pipen, S.L. 1,042 1.74
Xxxx Xxxxxx Xxxxxxxxx Xxxxxx 971 1.62
JMC 2000, S.L. 3,316 5.53
Xxxxxx Xxxxxx Entrecanales 1,267 2.11
MGVH 2000, S.L. 3,021 5.04
GAVEC CARTERA 24, S.L. 5,760 9.60
Xxxxxxxx G(a)Arquimbau Xxxxx 584 0.97
Xxxxxx Xxxxxxxx Xxxxxxxx 507 0.84
Mediacapital, B.V. 24,000 40.00
Witgoud Investments B.V. 12,000 20.00
TOTAL: 60,000 100.00
I. Grupo Arbol and MediaPro B.V. are in the process of merging, so that
the Shareholders of Grupo Arbol and the Shareholders of MediaPro B.V. -
following a certain prior reorganization pursuant to which MEDIACAPITAL
will own 66.66% and WITGOUD will own 33.33% of the capital- will
contribute all their shares in those companies to M/A and will receive,
in exchange, interests in M/A in proportion to their respective
contributions (hereinafter, the "M/A MERGER"), all as provided in the
Merger Agreement of the Business of the ARBOL and MEDIAPRO Groups dated
February 10, 2006) (hereinafter, the "MERGER AGREEMENT", copy of which
is attached as Exhibit I hereto). Under the Merger Agreement, the
ownership structure of M/A following completion of the merger process
will be the percentages set forth in the above table. The respective
interests will be free from any lien or encumbrance other than those
described in the following Recital.
As of the date hereof, WPP does not hold any direct or indirect
interest in M/A. However, as part of the Merger process, WPP will own
10% of the preferred shares of the capital stock of WITGOUD with the
right to convert them, as
11
described in the Merger Agreement and in Exhibit 9.1(IX) to the Line of
Credit defined below, of the entire capital of the above-mentioned
company.
J. Following the merger described in the previous Recital, the pledge
mentioned in Recital B will be cancelled and replaced by a pledge on
all equity interests of M/A owned by the Grupo Arbol Shareholders as a
result of the subscription of the M/A capital increase, through the
non-monetary contribution of their Grupo Arbol shares.
K. SPV is a company wholly owned by M/A, to which Grupo Arbol and MediaPro
intend to transfer all GAMP shares owned by the latter two companies
(hereinafter, the "TRANSFER TO SPV"). The sole asset of SPV will be
such GAMP shares mentioned in Recital D and all additional shares they
may hold in that company, and its sole purpose will be to receive the
Line of Credit defined in Clause 2 below for the capitalization of GAMP
and subsequently of LA SEXTA.
L. As a result of their direct or indirect joint investment in LA SEXTA,
the Parties have reached another series of agreements for the financing
of the Project and for the possible investment of Televisa in M/A.
M. Considering the foregoing, the Parties have decided to enter into this
Investment Agreement (the "AGREEMENT") in accordance with the following
CLAUSES
1. PRELIMINARY OBLIGATION
The Grupo Arbol Shareholders, the MediaPro B.V. Shareholders and the
M/A Members undertake to carry out the M/A Merger and the Transfer to
SPV in good faith and within the shortest possible period of time, on
the terms described in Recitals I, J and K and in this Clause
(hereinafter, the "PRELIMINARY OBLIGATION"):
(a) The Preliminary Obligation shall have been performed by June 30, 2006.
(b) Attached as Exhibit 1(b) hereto are the audited financial statements of
Grupo Arbol and MediaPro B.V. for fiscal year 2004, the consolidated
financial statements as of September 30, 2005 of each company and the
pro-forma consolidated financial statements of both merged companies as
of December 31, 2004 and September 30, 2005, as well as a table updated
to the date of this Agreement with all subsidiaries and affiliated
companies of Grupo Arbol and of MediaPro B.V. The Grupo Arbol
Shareholders and the MediaPro B.V. Shareholders represent, warrant and
undertake, as the case may be, that:
i. From the date of this Agreement to the consummation of the M/A
Merger, both companies will act in the ordinary course of
business so as to maintain the integrity of their businesses.
ii. The assets that are part of the M/A Merger are all the assets
currently used by each of the Grupo Arbol Shareholders and the
MediaPro B.V. Shareholders in the Audiovisual Production and
Other Audiovisual 12
Services, as defined in Clause 8, except for the Assets
excepted from the M/A Merger, which are listed in Exhibit 1
(b) ii attached hereto.
iii. The M/A Members will have non-compete obligations on the terms
set forth in clause 8 below.
iv. Prior to the execution of this Agreement, M/A and the M/A
Members have delivered to Televisa copy of (i) the Merger
Agreement and (ii) the bylaws of M/A. M/A and the M/A Members
represent to Televisa that they are not parties to any other
agreement governing the creation or transfer of interests in,
or the control or management of M/A.
Performance of the above-mentioned Preliminary Obligation shall be evidenced
through the delivery to Televisa of (i) copy of the notarial instruments
recording the contribution of the Grupo Arbol and MediaPro B.V. shares to M/A,
duly executed and submitted to the Commercial Registry for registration and (ii)
a certificate of the Secretary of the M/A Board of Directors describing the
ownership structure following the M/A Merger.
2. LINE OF CREDIT
Concurrently with the execution of this Agreement, DTH Europa, S.A., a
subsidiary 100% owned, directly or indirectly, by Televisa, and with the joint
and several undertaking of Televisa, as its own obligation pursuant to the
letter attached as Exhibit 2 hereto, signs with SPV, a 100% directly owned
subsidiary of M/A, a line of credit, in order to finance part of the capital
contributions of M/A to La Sexta through its direct interest in SPV and its
indirect interest in GAMP, according to the terms and conditions set forth in
the agreement attached as Exhibit 2 bis hereto (hereinafter, the "LINE OF
CREDIT").
As provided therein, the Line of Credit will be secured by the joint and several
suretyship of M/A, Grupo Arbol and MediaPro B.V. as regards the interest, and by
Pledge Agreements with limited recourse as regards the obligation of repayment
of principal, on all GAMP shares owned by SPV and on all SPV shares owned by M/A
(hereinafter, the "GAMP PLEDGE" and the "SPV PLEDGE" and, collectively, the
"PLEDGES"), on the terms and conditions set forth in the agreements attached as
Exhibit 2ter and Exhibit 2quater hereto, respectively, to be signed prior to the
first drawdown under the Line of Credit. As provided in the GAMP Pledge, DTH
Europa, S.A. will have the obligation of lifting the pledge on the shares SPV
may sell provided that (i) it continues to hold, in any event, more than 50% of
the GAMP shares and (ii) the proceeds from such sale received by SPV are
allocated, following deduction of applicable taxes, only and solely to repayment
of the debt incurred by M/A, SPV, Grupo Arbol and/or MediaPro to finance their
investment in La Sexta other than the Line of Credit, and the balance, if any,
to the repayment of the Line of Credit.
In addition, M/A and its subsidiaries shall take the required actions for the
funds that SPV is entitled to receive, in proportion to its interest in GAMP,
from the sale, if that be the case, of 9% of the shares of LA SEXTA to be
allocated, following deduction of applicable taxes and legal reserves, (i) to
capital contributions to LA SEXTA or (ii) to the repayment of the debt incurred
by M/A, SPV, Grupo Arbol and/or MediaPro to
13
finance their investment in LA SEXTA other than the Line of Credit, and the
balance, if any, to repayment of the Line of Credit.
3. OPTIONS ON GAMP AND SPV
Prior to the first drawdown under the Line of Credit, M/A and SPV will, in
consideration for the Line of Credit, grant Televisa purchase options on their
entire interests in SPV and GAMP, respectively, at a strike price equal to the
outstanding balance of the Line of Credit at any time, as regards principal, on
the terms and conditions set forth in the agreements attached as Exhibit 3 and
Exhibit 3 bis hereto (hereinafter, the "SPV OPTION" and the "GAMP OPTION" and,
collectively, the "OPTIONS"). As provided in the GAMP Option, SPV may sell GAMP
shares provided that (i) it continues to hold, in any event, over 50% of the
GAMP shares and (ii) the proceeds from such sale are allocated only and solely
to the repayment of the debt undertaken by M/A, SPV, Grupo Arbol and/or MediaPro
to finance their investment in LA SEXTA other than the Line of Credit, and the
balance, if any, to repayment of the Line of Credit.
Televisa may, at its election, exercise the SPV Option or the GAMP Option at any
time during their respective terms, provided a default occurs that accelerates
the Line of Credit. The purchase price, if the SPV Option or the GAMP Option are
exercised, will be paid to M/A or the SPV, if the amount thereof is actually
allocated in full to payment of the principal amount of the Line of Credit. Once
the price has been paid and the amount thereof allocated as described above, a
receipt will be issued for the principal amount of the Line of Credit, which
will entail the termination of the Options and the Pledges. The parties agree
that Televisa may, freely and at its option, exercise the Options or the
Pledges, without the exercise of any one of them precluding the exercise of any
of the others.
4. ASSUMPTION OPTION
Concurrently with the execution of this Agreement, the M/A Members and M/A grant
Televisa, which accepts it, an assumption option in respect of the interests in
M/A (hereinafter, the "ASSUMPTION OPTION") on the terms and conditions set forth
in the agreement attached as Exhibit 4, so that Televisa will be entitled to
assume, and the M/A Members and M/A will have the obligation of carrying out all
acts required for Televisa to assume the M/A interests derived from the
above-mentioned option.
All terms used in this Agreement and in the Assumption Option relating to
interests, and the creation and assumption thereof, members and other related
terms shall be deemed to have been modified to shares, the issuance and
subscription thereof, shareholders and other related terms in the event that, at
any time, M/A becomes a corporation [sociedad anonima], and the Assumption
Option, shall, mutatis mutandi, become an option to subscribe for shares.
5. EQUITY CONTROL, PERMANENCE AND ALLOCATION OF FUNDS
(a) During the entire term of the Line of Credit and of the Assumption
Option, M/A undertakes to hold (i) 100% of the capital of SPV and (ii)
a majority interest in the capital stock (in every case over 50%) of
GAMP and of that held by GAMP in LA
14
SEXTA, and (iii) direct or indirect control of GAMP and LA SEXTA on the
terms derived from the LA SEXTA Shareholders' Agreement and from the
GAMP Shareholders' Agreement to be delivered in accordance with the
Shareholders' Agreement.
(b) Up to whichever is later of (i) the expiration of the term of the Line
of Credit, (ii) the expiration of the Assumption Option and (iii) the
expiration of a two-year period from the date on which Televisa becomes
an M/A shareholder through the exercise of any of the acquisition,
subscription or assumption rights granted to it herein, each and every
M/A Member (except WPP and any of the companies of its group) undertake
to continue, in its favor and in favor of its subsidiaries, to perform
all service, professional, commercial, labor and other agreements and
to carry out all the duties currently carried out by them, be it as
creative personnel, producers or managers, each in his specific
position, except for such changes as may be agreed in the general
interest of M/A in the ordinary course of business.
(c) Up to whichever is later of (i) the end of the term of the Line of
Credit and (ii) the expiration of the term of the Assumption Option,
M/A Members may only sell the number of interests that results from
applying the percentage of their interest in M/A set forth opposite the
number of interests held by each of them (or the number resulting from
the sum of the interests of the Members who appear as a group) in M/A
at the time of consummation of the M/A Merger (the "UNRESTRICTED
INTERESTS") according to the following table. The interests that may
not be disposed of during such period shall be deemed to be "RESTRICTED
INTERESTS".
M/A MEMBERS %
----------- -
Xxxxxx Xxxxxx Xxxxxxx + Caribe Music, S.A. 1%
Xxxxxx Ecija Xxxxxx + Xxxxx, X.X. 1%
Xxxx Xxxxxx Xxxxxxxxx Xxxxxx + JMC 2000, S.L. 1%
Xxxxxx Xxxxxx Entrecanales + MGVH 2000, S.L. 1%
GAVEC CARTERA 24, S.L. 100%
Xxxxxxxx G(a)Arquimbau Xxxxx 1%
Xxxxxx Xxxxxxxx Xxxxxxxx 1%
Cavendish Square Holding, B.V. 100%
Mediacapital, B.V. 25%
M/A Members undertake that the first existing M/A interests to be sold
shall, in any case, be those held by GAVEC CARTERA 24, S.L.
M/A Members further undertake that during the term of the LA SEXTA
Shareholders' Agreement, they will not sell interests in M/A to any
competitor of Televisa in Mexico. For this purpose, only those
individuals or legal entities which (i) provide television broadcasting
services via networks in Mexico, or (ii) own an interest of not less
than 5% in a television operator providing television broadcasting
services via networks in Mexico shall be deemed to be competitors of
Televisa in Mexico.
15
(d) M/A Members may sell M/A interests other than those permitted in
paragraph (c) above or create new M/A interests only if: (i) in the
event of a sale, the period set forth in paragraph (c) above has
elapsed, or they have secured the express authorization of Televisa and
(ii) both in the case of sale of existing interests to third parties or
of creation of new interests in favor of third parties, prior to or
concurrently with such sale or creation, the Line of Credit has been
repaid in full, and will then be cancelled and, if necessary, GAMP has
provided a financing guarantee for the capital requirements of LA SEXTA
as provided in Clause 14 of the LA SEXTA Shareholders' Agreement, to
replace the Line of Credit.
In the event that new M/A interests are created for assumption by the
M/A Shareholders, the prohibition of disposing of M/A interests set
forth in paragraph (c) above shall extend to such newly created
interests assumed by the M/A Members, which will also be deemed to be
Restricted Interests.
(e) The M/A Members undertake to continue to hold a majority interest in
the capital of M/A (of over 50%) for, at least, a two-year period from
the acquisition by Televisa of an interest in the capital of M/A
through the exercise of any of the acquisition or assumption rights
granted to it in this Agreement.
(f) Up to the moment specified in paragraph (c) above:
- Mr. Josep Xxxxx Xxxxx Xxxxxx, Xx. Xxxxxx Xxxx Xxxxxxx and Xx.
Xxxxx Roures Llop undertake not to sell or transfer their
interest in ATASCORP, MEDIAVIDEO and MEDIACABLE and to ensure
that such companies do not sell or transfer their interest in
MEDIACAPITAL, except among such persons or companies and
always within the limits of sub-section (c) as regards
Unrestricted Interests.
- Mr. Xxxxxx Xxxxxx Xxxxxxx, Xx. Xxxxxx Ecija Xxxxxx, Xx. Xxxxxx
Xxxxxx Entrecanales, Mr. Xxxx Xxxxxx Xxxxxxxxx Xxxxxx, Xx.
Xxxxxxxx Xxxxxx Araquimbau Xxxxx and Xx. Xxxxxx Xxxxxxxx
Xxxxxxxx undertake not to sell or transfer their interest in
GAVEC CARTERA 24, CARIBE MUSIC, PIPEN, MGVH and JMC 2000 or in
any other company which, in turn, holds a direct or indirect
interest in M/A.
(g) The M/A Members undertake that, in exercising the rights provided for
therein, or under the Assumption Option, the right to exclusive
negotiation or the right of first refusal, the interest to be held by
WITGOUD in M/A following the M/A Merger will not be reduced below 20%
of the capital of that company, except by prior written agreement of
WPP or by unilateral decision of WPP. In the event that, through the
exercise of any of the aforementioned rights, the interest of WITGOUD
should be reduced to less than 20%, the M/A Members - excluding, for
the avoidance of doubt, Televisa- undertake to sell to WITGOUD, in
proportion to their respective interests, at the price at which
Televisa acquired the interests, the number of interests required, if
WITGOUD acquires them, for WITGOUD to hold a percentage interest of 20%
in M/A.
16
Televisa undertakes not to prevent the execution or performance of the
above-mentioned agreement and to such end, waives its pre-emptive right
or any right to challenge that it may have in that respect. Televisa
further undertakes, should it become an M/A shareholder, to observe and
perform this agreement.
(g)[sic] GAVEC CARTERA 24 S.L. undertakes that all proceeds from the sales
permitted in paragraph (c) will be allocated to payment of the loan
mentioned in Recital B until such loan has been paid in full.
6. RIGHT TO EXCLUSIVE NEGOTIATION
6.1. M/A and the M/A Members grant Televisa an exclusive negotiation right
to submit an offer for the assumption of the newly-created interests in
M/A and, if that be the case, the acquisition of existing interests in
M/A representing an interest of 20% in the capital of M/A, on the terms
set forth below; it should be noted, however, that such 20% percentage
will be the percentage to be held by Televisa following the assumption
of the capital increase in the case of newly-created interests and/or
following the purchase of shares:
(a) Televisa's offer will be structured so as to include the
assumption of new interests, whose amount will be used to
repay the drawn-down balance of the Line of Credit in full, up
to the amount of eighty million euros (E80,000,000) and,
should there be a surplus, to acquire existing interests in
M/A.
(b) The exclusive negotiation period will commence on April 15,
2006 and its duration will be of 120 calendar days as from
such date, or as from the date on which evidence is provided
of performance of the Preliminary Obligation set forth in
Clause 1 above, whichever is later (hereinafter, the
"EXCLUSIVE NEGOTIATION PERIOD"). During such period, M/A and
the M/A Members (i) may not undertake negotiations of any kind
with third parties with the purpose of selling or otherwise
disposing of interests in M/A and (ii) shall cooperate fully
to enable Televisa to carry out a full legal, labor, tax and
financial review of M/A, including its subsidiaries.
For the purposes of the previous paragraph, Televisa shall
provide, within 15 business days of the execution of this
Agreement, a list of the documents required to conduct the
above-mentioned full review, which shall be made available to
it by M/A diligently, specifying those documents that do not
exist or are not applicable. Furthermore, Televisa and its
advisors will be given reasonable access to the facilities of
M/A and its main subsidiaries and informational meetings will
be organized with the senior managers of the various areas of
M/A and its principal subsidiaries.
Specifically, M/A shall provide, by April 30, 2006, the
pro-forma consolidated financial statements of M/A for fiscal
year 2005 and the audited consolidated financial statements of
M/A.
The Exclusive Negotiation Period shall be extended in the
event of delays, if any, in the delivery of the required
documents and particularly of those expressly mentioned in the
previous paragraph.
17
M/A may propose to Televisa, within two months of the
beginning of the Exclusive Negotiation Period, the basic terms
for its offer (the "OFFER FORM"). In such case, both
Televisa's offer and the offer, if any, submitted by a third
party pursuant to the provisions of Clause 6.2 below shall
necessarily conform to Offer Form.
(c) Within the Exclusive Negotiation Period, Televisa shall submit
a binding offer for the assumption and/or, if that be the
case, the purchase of 20% of the capital stock of M/A,
following the Offer Form. However, Televisa will be entitled
to also submit an offer that does not conform to the Offer
Form.
In the event that, upon expiration of the Exclusive
Negotiation Period, Televisa fails to submit a binding offer
in accordance with the Offer Form, the Assumption Option shall
terminate and become void.
(d) M/A will accept or reject the binding offer in writing within
15 calendar days of the date of receipt thereof. In the
absence of any such reply upon expiration of such period, the
offer will be deemed to have been rejected.
(e) If the binding offer is accepted, the M/A Members and/or M/A,
as the case may be, shall formalize the resolution providing
for a capital increase, waiving their pre-emptive right in
favor of Televisa and, if such be the case, providing for the
sale of the interests in proportion to their interests in M/A,
and the Assumption Option shall therefore terminate and become
void upon delivery to Televisa of a true copy of the
respective notarial instruments.
Such formalization shall occur:
1. For the assumption of new interests, M/A and the M/A
Members shall, within 45 days of the binding offer
having been accepted, carry out all necessary actions
and adopt all corporate resolutions required to carry
out the capital increase including, without
limitation, calling a General Shareholders' Meeting -
the notice of which shall comply with the necessary
requirements and contain the required information
including, if that be the case, the certification of
the auditor, the attendance and holding of such
meeting - which shall adopt the required
resolutions-. Within 5 days of the assumption and
payment in full of the interests by Televisa, M/A
undertakes to file the deed notarial instrument
recording the capital increase with the Commercial
Registry for registration and, once such registration
has been effected, to deliver such notarial
instrument to Televisa.
2. For the sale of existing interests, on the date the
General Shareholders' Meeting provided for in the
previous paragraph is held, or within 30 days of the
acceptance of the binding offer, if only existing
interests are being sold. To such end, Televisa and
the M/A Members shall sign an interest purchase
agreement setting forth the terms of the binding
offer.
18
6.2 If the binding offer is rejected, the M/A Members and M/A may, starting
from the date of rejection and (i) by December 31, 2006, make a public
offering for the subscription and/or sale of the M/A shares (IPO and/or
Sale of Existing Interests) with an insured value that is at least that
of the outstanding balance of the Line of Credit, or (ii) for a period
of 137 calendar days starting from the aforementioned date of
rejection, carry out the procedure of creation and/or sale of 20% of
the interests in M/A, provided that they are Unrestricted Interests,
under the following conditions, with the understanding that the
aforementioned 20% shall belong to the third party after the capital
increase has been assumed, in the case of the creation of new
interests, and/or the purchase of shares has been executed:
(a) The process of creation and/or sale of interests will be
formulated in the same terms as the Televisa offer, as
described in section 6.1(a) above.
(b) The price, if any, that is offered by the third party will be
adjusted to meet the Offer Form and must be declared in
currency, with transfer by exchange, swaps or similar means
therefore not being possible. M/A will be obligated to
determine the solvency of the third party's offer. In the
event of a Sale of Existing Interests or IPO, the offering
price of the third party will be deemed to be the lower limit
of the non-binding price range included in the corresponding
registration document for the Sale of Existing Interests or
IPO but, with respect to the other terms and conditions, will
not be subject to the Offer Form, if it exists.
(c) In the event that the economic conditions offered by the third
party are, as a whole, similar to and more favorable than
those offered by Televisa, and the price is at least 15%
greater, the entry of the third party into the capital of M/A
will be permitted under such conditions. Upon the entry of the
third party, M/A and, if applicable, the M/A Members may
choose between:
1. Sharing with Televisa, by means of the provision of
cash, 50% of any excess in difference between the
valuation representing 10% of the capital and the
amount of sixty million Euros (60,000,000)
representing 10% of the capital, with the Assumption
Option thus being canceled; with the understanding
that, if the aforementioned excess does not exist,
the Assumption Option will also be canceled.
2. Not sharing the aforementioned excess, if any, with
Televisa, in which case the Assumption Option will
remain in effect.
(d) If the offer presented by a third party is not greater than
the aforementioned 15%, Televisa will have the right to choose
either of the two alternatives described below which, upon
being consummated or in the event that Televisa decides not to
exercise its right, will result in the termination of the
Assumption Option:
19
1. Assume or, if applicable, purchase the interests for
a price equal to its binding offer plus 50% of the
difference between the offer of Televisa and the
offer of the third party.
2. Not assume or, if applicable, purchase the interests,
and receive from M/A and, if applicable, the M/A
Members the cash amount of 50% of the difference
between the Televisa offer and the offer of the third
party.
(e) If the offer presented by a third party is lower than that of
Televisa and it is nonetheless decided to conduct the
transaction, Televisa will have the right to choose either of
the alternatives described below:
1. Purchase or assume the interests at the price and
under the other conditions offered by the third
party, with the result that the Assumption Option
terminates.
2. Not assume or purchase the interests, in which case
M/A will issue and/or the M/A Members will sell the
interests to the third party under the conditions
that the latter has offered, with the result that the
Assumption Option terminates.
For the purpose of complying with the provisions of this Clause 6.2,
M/A must immediately send to Televisa, upon execution of the
corresponding confidentiality agreement, a copy of the third party
offer selected.
6.3 The M/A Members may agree to the creation of new interests in M/A for a
third party or sell the existing interests to a third party under the
conditions of this Clause 6, only if prior to or simultaneously with
doing so, the balance of the Line of Credit drawn down is repaid,
thereby canceling the latter. In such case, also prior to or
simultaneously with, GAMP will have to have provided a guarantee of
financing for the capital needs of LA SEXTA, as described in Clause 14
of the LA SEXTA Shareholder Agreement, as a replacement for the Line of
Credit. In the case of a Sale of Existing Interests or IPO, the
cancellation of the Line of Credit will occur at the time of the
liquidation of the aforementioned Sale of Existing Interests or IPO.
20
7. RIGHT OF FIRST REFUSAL
If the period described in Clause 6.2 above elapses and Televisa or a
third party has not incorporated the capital stock of M/A as the
shareholder owning 20% of its capital stock, the M/A Members will give
Televisa a right of first refusal that may be exercised up to June 30,
2011 with respect to third party offers for up to 20% of the interests
of M/A in one or more transactions, whether by means of the purchase of
existing interests or the assumption of new interests under the same
terms and conditions as those offered by the third party and in
compliance with the procedures established below. If the offer exceeds
20% of the capital of M/A, the right of first refusal shall be extended
to the entire interest offered. In the case of newly created interests,
the aforementioned percentage of 20%, or a greater percentage to which
an option may be held, will belong to Televisa once the capital
increase has been assumed and/or the purchase of the interests has been
executed.
(a) In the event that any of the M/A Members wishes to transfer
any of its interests in the Company (the "TRANSFERRING
SHAREHOLDER") to a third party, or the M/A Members wish to
create new interests for sale to a third party, the
Transferring Shareholder or M/A, respectively, must notify
Televisa in writing (the "FIRST NOTIFICATION") of their wish
to transfer or create such interests, indicating the specific
number (the "INTERESTS FOR SALE") and the other terms and
conditions of payment for the transfer or creation.
(b) Within a maximum period of thirty (30) days starting from the
receipt of the First Notification (the "Offering Period"),
Televisa may communicate to the Transferring Shareholder or to
M/A, as applicable, its intent to purchase or assume the M/A
interests described in the Notification, under the terms and
conditions set forth therein (the "SECOND NOTIFICATION").
At the Second Notification, Televisa may choose between:
i. Accelerating the exercise of the Assumption Option
(which will terminate upon use), in which case it
will contribute the outstanding balance of the Line
of Credit and, in the event that the latter is less
than eighty million Euros (E80,000,000), the
additional amount up to that figure, for the interest
produced by applying the formula established in the
Assumption Option (the "ASSUMPTION OPTION FORMULA"),
and purchasing or assuming, as applicable, the
remainder until reaching 20% -- or, if the offer of
the third party is a higher percentage and therefore
interests Televisa, the percentage corresponding --
at the offering price of the third party. In the
event that the Line of Credit no longer exists, the
eighty million Euros (E80,000,000) will be
contributed in cash for the interest resulting from
applying the Assumption Option Formula and the
remainder, if applicable, will also be provided in
cash.
ii. Not exercising the Assumption Option, upon which it
may exercise, or not, solely its right of first
refusal, up to 20% or, if the offer of the third
party is a higher percentage and therefore interests
Televisa, the corresponding percentage; in which
case, it if it exercises its right for the 20% or the
21
higher percentage mentioned above, the Assumption
Option will terminate.
iii. Notifying M/A of its wish that the interests
assignable to Televisa by virtue of its Assumption
Option be liquidated for the cash difference between
eighty million Euros (E80,000,000) and the implicit
offer of the third party for 10% (or the percentage
resulting from the Assumption Option Formula) of the
capital of M/A, in such a way that Televisa receives
the additional amount based upon the calculation of
the difference between the nominal amount of the
conversion at the execution of the sale or the
creation of interests for a third party.
Upon the receipt of the Second Notification, as applicable:
1. In the case of the sale of already existing
interests, the Transferring Shareholder will be
obligated to sell, and Televisa will be obligated to
buy, the Interests for Sale indicated in the Second
Notification. Such purchase must take place within
thirty (30) days from the date of the Second
Notification.
2. In the event of the assumption of new interests,
within the period of 45 days from the acceptance of
the binding offer, M/A and the M/A Members will carry
out all the procedures necessary and adopt all
shareholder agreements necessary to carry out the
capital increase, including, by way of example but
without limitation, the calling of a General Meeting
- with the requirements and content necessary,
including, if applicable, the certification of the
account auditor, the attendance and the holding of
the meeting - adopting the appropriate resolutions-.
Within the period of five days from the assumption
and full payment of the interests by Televisa, M/A
agrees to present the capital increase certificate at
the Commercial Registry for its registration, and
after having done so, to deliver the certificates to
Televisa.
(c) In the event that the M/A Members or M/A conduct a Sale of
Existing Interests or IPO after January 1, 2007, the
provisions of this Clause will be applied as follows:
i. The First Notification will include the corresponding
certificate of registration of the Sale of Existing
Interests or IPO.
ii. The offering price of the third party will be
considered to be the lower limit of the nonbinding
price range included in the aforementioned
registration certificate for the Sale of Existing
Interests or IPO, unless Televisa chooses to
accelerate the exercise of the Assumption Option, in
which case the offering price of the third party will
be, solely and exclusively with respect to the
aforementioned exercise of the Assumption Option, the
lower of the aforementioned price and that resulting
from the application of the Assumption Option
Formula.
(d) In the event that Televisa communicates to the Transferring
Shareholder or to M/A its intent not to purchase or assume the
Interests for Sale, or if Televisa has
22
not responded to the Transferring Shareholder or to M/A
regarding this during the Offering Period, the Assumption
Offer will remain active and the Transferring Shareholder may
transfer or may agree to the creation in M/A of the total
amount, and solely the total amount, of the Interests for
Sale, under terms and conditions that are no less favorable,
with respect to price or any other aspect, for the
Transferring Shareholder or M/A than those described in the
First Notification, with the present right of first refusal
thereby being settled on Televisa for the percentage that may
have been transferred, provided that transfer or creation
takes place within the period of 90 days starting from the
finalization of the Offering Period. When the aforementioned
period has elapsed, an identical procedure will have to be
undertaken in order to carry out any transfer or creation of
interests in M/A, until a percentage representing 20% of the
capital of M/A has been transferred to third parties, upon
which this right of first refusal shall terminate.
(e) In the event that Televisa exercises the right of first
refusal described in this Clause for 20% of the capital of M/A
or for the additional percentage which, pursuant to this
clause, is the option of Televisa, the Assumption Option will
terminate, and prior to this or at the same time, the
drawn-down balance of the Line of Credit will be repaid and
the latter will be cancelled. In such case, if necessary and
also prior to or simultaneously with, GAMP must have provided
a guarantee of financing for the capital needs of LA SEXTA, as
described in Clause 15 of the LA SEXTA Shareholder Agreement,
as a replacement for the Line of Credit.
(f) The right of first refusal described in this clause is
independent of the existence or non-existence of the
Assumption Option, without prejudice to the termination of the
latter when exercised pursuant to this clause or any other. In
addition, it must be noted that (i) if, prior to the exercise
of the right of first refusal, Televisa has already exercised
its Assumption Option, the right of first refusal will be
reduced by the percentage of capital that Televisa may have
acquired by the exercise of that right and (ii) the
termination of the right of first refusal pursuant to the
provisions of paragraph (d) above will not mean the
termination of the Assumption Option.
8. NON-COMPETE
8.1 The M/A Members, except for WPP and any companies in its
group, undertake and agree with M/A and Televisa that they
will not compete, directly or indirectly, with M/A and its
subsidiaries in the activity of Audiovisual Production and
Other Audiovisual Services during such time as they maintain
their character, directly or indirectly, as members in M/A,
and for the period of two years after their withdrawal from
the authorized capital of M/A, regardless of the date on which
this takes place.
For the purposes of the preceding paragraph, the following
definitions apply:
- Audiovisual Production: the activities of creation
and/or production of programs, movies, reports,
documentaries, advertisements and any other cinematic
video work and other audiovisual works.
23
- Other Audiovisual Services: technical and human services for
the production of audiovisual works (including, among other
things, mobile rebroadcasting unit services (OB Vans
Services), postproduction services, the rental of television
studios, play-out services and ENG services), satellite
transmission, cable and radio wave transmission services,
audiovisual engineering services, services and activities
relating to sports and television consulting, marketing and
television communications services and audience analysis
services.
Notwithstanding the non-compete obligation established above, any Member
of M/A who so requests, other than Televisa, is by virtue of this clause
authorized by the other Members of M/A and Televisa to maintain its
shareholder interest in M/A and to be released from its non-compete
obligation provided that the following requirements are met: (i) the M/A
Member does not hold directorship or administrative positions in M/A or in
its group; (ii) the M/A Member in question has complied with its
obligation to remain for the period of time indicated in Clause 5,
paragraph (b) above; and (iii) two years have elapsed since the M/A Member
in question ceased to participate in the service contracts and the
performance of the duties described in Clause 5, paragraph (b) above.
8.2 Televisa undertakes and agrees that:
- During the Exclusive Negotiation Period and for 120 days after
the end of that period, it will not found or enter the capital
of a Spanish corporation whose corporate purpose is
Audiovisual Production or Other Audiovisual Services in Spain,
with the understanding that the foregoing will not limit the
ability of Televisa to perform its ordinary activities --
including, among other things, the sale of rights and the
marketing of television series, programs, scripts, etc. -- in
Spain as it has been doing up to that time.
- Once it becomes a member of M/A, if applicable, and provided
that it is a member with 20% or more, it will invite M/A to
participate in any project in which Televisa may engage that
represents competition with the activities of M/A in
Audiovisual Production or Other Audiovisual Services in Spain,
in the same proportion at that of the interest of Televisa in
the capital of M/A.
8.3 Upon the signing of this agreement, the M/A Members, except for WPP
and the companies in its Group, accept the same non-compete
obligations as those assumed by M/A in Clause 24 of the LA SEXTA
Shareholder Agreement, for the same period of time described
therein.
9. NON-SOLICITATION
Televisa, Grupo Arbol, MediaPro B.V., M/A and their direct or indirect
subsidiaries agree not to solicit, lure, make offers of work or offers for
provision of services or hiring of first-line executives, creative
personnel, screenwriters and content producers of the other party (or
companies belonging to its group), with the understanding that the Parties
will notify each other in good faith of any action by
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the other Parties that might represent a breach of this Clause, as soon as
they become aware of it, for the purposes of being able to prevent the
breach.
Individual breaches of this Clause will result solely in the payment by
the Party in breach to the affected Party of two hundred thousand Euros
(E200,000) for each event of breach.
10. RIGHTS AS MINORITY SHAREHOLDER
In the event of the exercise of the Assumption Option, as a member of M/A,
Televisa will have (i) the rights granted under the law, with the
understanding that Televisa will have no fewer rights than those possessed
by any other member of M/A with an interest equal to or smaller than that
of Televisa, as well as (ii) tag along rights (so that, in the event of
the sale of a controlling block of M/A, Televisa will have the right to
sell the entirety of its interests to the purchaser under the same
conditions as those of the transferring member(s) and, in the event of any
other transfer, will have the right to transfer a number of interests
proportional to those of the transferring member, under the same
conditions as the latter[)]; and (iii) in addition, in the event of
reaching, by means of exercise of the Assumption Option, a percentage
equal to or greater than 20% of the capital of M/A, Televisa will have, at
minimum, the rights listed in Exhibit 10.
In addition, once Televisa has the right to participate in the capital of
M/A, pursuant to the provisions of this Agreement, if as a result of the
provisions of Clause 21.2 of the LA SEXTA Shareholders Agreement, Televisa
cannot exercise that right because its interest - the total of the direct
and indirect interests - exceeds what is legally permitted, the Parties
agree that Televisa will have the right to sell LA SEXTA shares in
conformity with the rules set forth in article 21.2, up to the limit at
which the sum of its indirect interest deriving from the exercise of its
rights under this Agreement and its direct interest do not exceed the
legally established limit.
The provisions of the preceding paragraph will also be applicable if,
because M/A increases its indirect interest in LA SEXTA, TELEVISA exceeds
the legally established interest limit.
11. ACCEPTANCE
During the effective life of the Line of Credit and/or the Assumption
Option, any new member in M/A must, prior to or simultaneous with its
acquisition or assumption of interests in M/A pursuant to this Agreement,
accept the latter, by means of signing and sending to the Parties the
acceptance letter that is attached as Exhibit 11.
12. CONDITION SUBSEQUENT
This Agreement, as well as the Line of Credit, the Options, the right of
first refusal in Clause 7 and the right of exclusive negotiation in Clause
6 will terminate, without creating rights or obligations for any of the
Parties involved, in the event
25
that the authorities responsible for fair competition do not authorize the
M/A Merger. Such termination will not affect the La Sexta Shareholder
Agreement.
13. MISCELLANEOUS
13.1 EXPENSES AND TAXES
(a) Expenses
Unless established otherwise in this Agreement, whether or not the
transactions provided for in this Agreement are actually conducted,
expenses relating to them will be paid by the Party incurring them.
(b) Taxes
Taxes that are imposed on this Agreement and the purchase or
assumption of the interests described in it will be the
responsibility of the parties, pursuant to the law.
13.2 COOPERATION
The Parties will cooperate mutually in the performance of the transactions
described in this Agreement and the delivery of all documents and
instruments that may be considered reasonably necessary or useful by any
Party.
13.3 NOTICES
Any notice, request, demand or other communication that must be provided
by any Party to this Agreement will be sent to the other Parties at the
addresses and to the attention of the representative indicated in Exhibit
13.3, or to those other addresses and/or individuals that any Party may
provide at any time to the other Parties.
Any notice, request, demand, or communication will be sent by any written
means that permits the confirmation of its receipt, and the notification
date will be deemed to be that of the confirmation that the notice in
question has been made to the corresponding addressee at the addresses
listed in Exhibit13.3.
13.4 ENTIRE AGREEMENT; AMENDMENTS
This Agreement constitutes the entire agreement between the Parties with
respect to its subject and replaces any other agreements or covenants made
between the Parties in connection with the transaction described herein,
specifically, the so-called MA-Televisa Economic Agreement, executed by
Televisa, MediaPro and Grupo Arbol on October 10, 2005, and the letter
signed by the same parties on October 14, 2005 (Re: Bid for obtaining a
license for the provision of public terrestrial television service via
networks), which will therefore cease to be valid and effective as of its
date.
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13.5 INVALIDITY, NULLITY AND PARTIAL INEFFECTIVENESS
If any clause of this Agreement is declared to be, totally or partially,
null and void, such nullity or ineffectiveness will affect only that
provision or the part of it that is null or void, with the Agreement
continuing in effect in all other respects, as if such provision, or the
part of it that is null and void, had never existed.
13.6 NO WAIVER
The failure by any Party to exercise any right deriving from this
Agreement will not be interpreted as a waiver of that right by that Party.
13.7 DECLARATIONS
The parties declare and warrant that the execution and performance of this
Agreement and the other documents mentioned in it:
(a) Do not represent any violation of the law, regulations, judicial
orders, rules or judicial decisions applicable to the Parties in any
jurisdiction in which they conduct their activities;
(b) Do not represent any violation of the provisions of the Bylaws of
the Parties or of any agreement or covenant of which the Parties may
be part, or of those by which they are bound.
M/A and the M/A Members undertake to Televisa to adopt the agreements and
actions that may be necessary and are within their control so that, when
the time comes, Televisa may exercise the rights that are recognized in
this Agreement, even in the event that some kind of impediment to this
arises from the documents described in Clause 1(b)(iv).
14. PERFORMANCE AND TERMINATION
This Agreement obligates the parties not only to the performance of the
obligations expressly agreed upon but also to all bona fide consequences
of it.
Each of the parties to this Agreement will have the power to terminate the
obligations in the event that the other party does not comply with its
obligations, unless another effect is produced, expressly and exclusively,
by its breach of this Agreement. A specific cause of termination of this
Agreement will be the failure to make the funds available to M/A at the
time when this should be done according to the terms of the Line of
Credit.
The termination of this Agreement does not imply the termination of the La
Sexta Shareholder Agreement.
15. APPLICABLE LAW
This agreement is subject to the laws of Spain.
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16. JURISDICTION
The parties waive any forum to which they may be entitled and expressly
submit themselves to the Courts and Tribunals of the capital city of
Madrid for all disputes that may arise with respect to the validity,
interpretation, performance, effectiveness or execution of this Agreement.
17. ADDITIONAL PROVISION
In addition to that contained in this Agreement, Televisa, M/A, Grupo
Arbol, MediaPro, GAMP y LA SEXTA have made certain reciprocal commitments
relating to the purchase and sale of shares of LA SEXTA and GAMP that will
be governed by their specific documents.
This Investment Agreement will be formalized by the presence of the Notary of
Madrid named in the heading, for the purposes of Article 1216 of the Civil Code,
Article 517 of the Law of Civil Procedure, and other concordant legislation.
The parties to this Agreement declare their acceptance and approval of its
contents as drafted, covering ___ pages, including its exhibits, and grant and
execute it, in my presence, in five equally original and authentic copies for
distribution to each of them, with one copy of remaining in my files.
And I, the Notary, having made the appropriate legal warnings, ATTEST to the
identity of the parties, to the authenticity of their signatures, to the fact
that I believe they have the capacity and authority to execute this Certified
Instrument, to the fact that the verbally-issued mandate exercised by the
representative of CAVENISH SQUARE HOLDINGS BV, must be ratified, that consent
has been freely given and that the execution hereof conforms to law and is the
result of the duly informed decision of the signers or participating parties.
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GRUPO TELEVISA, S.A.
By: By:
/s/ Salvi Folch Viadero /s/ Xxxxxxx Xxxxxxxxx Santa Xxxx
-------------------------------------- --------------------------------------
Xx. Xxxxx Folch Viadero Xx. Xxxxxxx Xxxxxxxxx Santa Xxxx
JMC 2000, S.L.
By:
/s/ Xxxx Xxxxxx Xxxxxxxxx Xxxxxx /s/ Xxxx Xxxxxx Xxxxxxxxx Xxxxxx
-------------------------------------- --------------------------------------
Mr. Xxxx Xxxxxx Xxxxxxxxx Xxxxxx Mr. Xxxx Xxxxxx Xxxxxxxxx Xxxxxx
ARBOL PRODUCCIONES, S.A. WITGOUD INVESTMENTS, BV.
By: By:
/s/ Xxxx Xxxxxx Xxxxxxxxx Xxxxxx /s/ Josep Xxxxx Xxxxx
-------------------------------------- --------------------------------------
Mr. Xxxx Xxxxxx Xxxxxxxxx Xxxxxx Mr. Josep Xxxxx Xxxxx
CAVENDISH SQUARE HOLDING, B.V. MEDIACAPITAL B.V.
By: By:
/s/ Josep Xxxxx Xxxxx /s/ Xxxxxx Xxxx Xxxxxxx
-------------------------------------- --------------------------------------
Mr. Josep Xxxxx Xxxxx Xx. Xxxxxx Xxxx Xxxxxxx
MEDIAVIDEO, S.L.
By:
/s/ Xxxxxx Xxxx Xxxxxxx /s/ Xxxxxx Xxxx Xxxxxxx
-------------------------------------- --------------------------------------
Xx. Xxxxxx Xxxx Xxxxxxx Xx. Xxxxxx Xxxx Xxxxxxx
30
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CARIBE MUSIC, S.A.
By:
/s/ Xxxxxx Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx Xxxxxxx
-------------------------------------- --------------------------------------
Mr. Xxxxxx Xxxxxx Xxxxxxx Mr. Xxxxxx Xxxxxx Xxxxxxx
GAVEC CARTERA 24, S.L. By:
By:
/s/ Xxxxxx Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx Entrecanales
-------------------------------------- --------------------------------------
Mr. Xxxxxx Xxxxxx Xxxxxxx Xx. Xxxxxx Xxxxxx Entrecanales
MGVH 2000, S.L.
By:
/s/ Xxxxxx Xxxxxx Entrecanales /s/ Xxxxxx Xxxxxx Entrecanales
-------------------------------------- --------------------------------------
Xx. Xxxxxx Xxxxxx Entrecanales Xx. Xxxxxx Xxxxxx Entrecanales
INVERSIONES MEDIAPRO ARBOL S.L. By:
By:
/s/ Xxxxxx Xxxxxx Entrecanales /s/ Josep Xxxxx Xxxxx Ferran
-------------------------------------- --------------------------------------
Xx. Xxxxxx Xxxxxx Entrecanales Mr. Josep Xxxxx Xxxxx Ferran
GRUPO AFINIA, S.L. By:
By:
/s/ Xxxxxx Xxxxxx Entrecanales /s/ Josep Xxxxx Xxxxx Ferran
-------------------------------------- --------------------------------------
Xx. Xxxxxx Xxxxxx Entrecanales Mr. Josep Xxxxx Xxxxx Ferran
31
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ATAS CORP, S.L.
By:
/s/ Josep Xxxxx Xxxxx Xxxxxx /s/ Josep Xxxxx Xxxxx Ferran
-------------------------------------- --------------------------------------
Mr. Josep Xxxxx Xxxxx Xxxxxx Mr. Josep Xxxxx Xxxxx Ferran
MEDIACABLE SERVICIOS DE JAUME ROURES I LLOP
PRODUCCION, S.L. BY:
By:
/s/ Josep Xxxxx Xxxxx Xxxxxx /s/ Josep Xxxxx Xxxxx Ferran
-------------------------------------- --------------------------------------
Mr. Josep Xxxxx Xxxxx Xxxxxx Mr. Josep Xxxxx Xxxxx Ferran
MEDIAPRODUCTION PROPERTIES, BV
By:
/s/ Josep Xxxxx Xxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx Arquimbau Xxxxx
-------------------------------------- --------------------------------------
Mr. Josep Xxxxx Xxxxx Ferran Xx. Xxxxxxxx Xxxxxx Arquimbau Xxxxx
PIPEN, S.L.
By:
/s/ Xxxxxx Xxxxxx Ecija Xxxxxx /s/ Xxxxxx Xxxxxx Ecija Xxxxxx
-------------------------------------- --------------------------------------
Mr. Xxxxxx Xxxxxx Ecija Xxxxxx Mr. Xxxxxx Xxxxxx Ecija Xxxxxx
/s/ Xxxxxx Xxxxxxxx Xxxxxxxx
--------------------------------------
Xx. Xxxxxx Xxxxxxxx Xxxxxxxx
WITNESSED BY ME,
32
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THE NOTARY
33
