THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS
WARRANT MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE
PROPOSED TRANSACTION DOES NOT REQUIRE REGISTRATION OR QUALIFICATION UNDER
APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
AMENDED AND RESTATED WARRANT
TO PURCHASE COMMON STOCK OF
UNIVISION COMMUNICATIONS INC.,
A DELAWARE CORPORATION
THIS IS TO CERTIFY THAT: Venevision International Limited, a British
Virgin Islands Corporation ("Venevision") or registered transferees (the
"Holder") is entitled to purchase from Univision Communications Inc., a
Delaware corporation (the "Company"), at any time and from time to time on
and after the date hereof an aggregate of 6,855,779 shares of Class V Common
Stock (or Class A Common Stock as provided herein) at a purchase price of
$0.12878 per share, all on the terms and conditions and subject to the
adjustments provided herein. This Amended and Restated Warrant (this
"Warrant") is executed and delivered with reference to the following facts:
A. On December 17, 1992, the Company issued warrants to
Venevision to purchase up to 35,000 shares of Class V Common Stock of the
Company (the "Original Warrant").
B. The Original Warrant contemplated the merger of PTI Holdings
Inc., a Delaware corporation that is 80% owned by the Company, ("PTIH") with
the Company.
C. Prior to such merger, the number of shares of Class V Common
Stock issuable upon exercise of the Original Warrant was limited to 26,000
shares.
D. The Original Warrant contained provisions regarding adjustment
to the number of shares issuable upon exercise of the Original Warrant upon
the merger of PTIH and the Company.
E. The Original Warrant provided that if PTIH merged into the
Company, the number of shares which could be purchased upon exercise of this
Warrant would be reduced in accordance with the terms of the Original Warrant.
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F. The Company and PTIH are combining other than through a merger
and the Company will be the sole owner of PTIH.
G. The Company and the Holder wish to amend and restate the
Original Warrant to reflect the combination of PTIH and the Company and
accurately to reflect the number of shares of Common Stock that will be
issuable upon exercise of this Warrant.
SECTION 1. CERTAIN DEFINITIONS. As used in this Warrant, unless
the context otherwise requires:
"Affiliate" means, with respect to a specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Business Day" means any day on which commercial banks are not
authorized or required to close in Los Angeles, California.
"Class A Common Stock" means the Company's authorized Class A
Common Stock, par value $.01 per share.
"Class P Common Stock" means the Company's authorized Class P
Common Stock, par value $.01 per share.
"Class T Common Stock" means the Company's authorized Class T
Common Stock, par value $.01 per share.
"Class V Common Stock" means the Company's authorized Class V
Common Stock, par value $.01 per share.
"Common Stock" means the Class A Common Stock, Class P Common
Stock, Class T Common Stock and Class V Common Stock.
"Communications Act" means the Federal Communications Act of 1934,
as amended, or any other similar Federal statute, and the rules and
regulations of the Federal Communications Commission promulgated thereunder.
"Exercise Price" means, on the date hereof, the purchase price per
share as set forth on the first page of this Warrant and thereafter shall
mean such amount as adjusted pursuant to Section 4.
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"Permitted Holder" means
(i) Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx (each a "Xxxxxxxx
Brother"), and any entity all of the equity (other than directors'
qualifying shares) of which is directly or indirectly owned by a Xxxxxxxx
Brother, or both of them, and that is not an Affiliate of any other Person;
(ii) (a) the spouse and lineal descendants of each Xxxxxxxx
Brother, (b) the personal representative and heirs of each Xxxxxxxx
Brother, (c) any trustee of any trust created primarily for the benefit of
any, some or all of such spouse and lineal descendants (but which may
include beneficiaries which are charities) or of any revocable trust
created by such Xxxxxxxx Brother, (d) following the death of such Xxxxxxxx
Brother, all beneficiaries under either such trust, (e) any entity all of
the equity of which is directly or indirectly owned by any of the foregoing
which is not an Affiliate of any Person other than the Person described in
clauses (a)-(d) above.
"Person" means a corporation, an association, a trust, a
partnership, a joint venture, an organization, a business, an individual, a
government or political subdivision thereof or a governmental body.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder, all as the same shall be in
effect at the time.
"Warrant Shares" at any time means the shares of Class V Common
Stock or Class A Common Stock then purchasable by the Holder upon the
exercise of this Warrant.
SECTION 2. EXERCISE OF WARRANT.
2.1 CONDITIONS OF EXERCISE. The Holder may at any time on and
after the date hereof exercise this Warrant in whole or in part from time to
time, for the number of Warrant Shares which the Holder is then entitled to
purchase hereunder; provided, however, that this Warrant may not be exercised
unless at the time of such exercise all of the following conditions are met:
(a) it is lawful at the time of exercise for the Holder to own the
number of shares of Common Stock which the Holder would own upon such
exercise of this Warrant, and the exercise of this Warrant and such
Holder's acquisition of such shares hereunder does not violate the
Communications Act or other applicable law, rule or regulation;
(b) the Company has received such evidence as it may reasonably
request confirming the foregoing, including, without limitation, an opinion
in form
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and substance, and from counsel, reasonably satisfactory to the
Company and, if the Company requests, an agreement from the Holder
reasonably satisfactory to the Company indemnifying the Company against
losses in the event the exercise of this Warrant violates the
Communications Act; and
(c) any required approval from the Federal Communications Commission
has been received.
In the event that the Company declines to permit the exercise of this Warrant
because it believes that paragraphs (a) or (b) above have not been satisfied
and a procedure exists for obtaining a binding determination of whether or
not such exercise will cause a violation of applicable law, including,
without limitation, obtaining a declaratory ruling from the Federal
Communications Commission under Rule 1.2 of the rules promulgated under the
Communications Act (or any successor rule), then at the request of the Holder
or the Company, the Company and the Holder will use reasonable efforts to
obtain such determination. Any such efforts shall be at the expense of the
Holder, unless the Company is unreasonable in refusing to rely on the
assurances provided pursuant to paragraph (b), in which case such efforts
shall be at the expense of the Company.
2.2 METHOD OF EXERCISE. The Holder may exercise this Warrant in
whole or in part by delivering to the Company (i) a written notice of the
Holder's election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased, (ii) this Warrant, (iii) the
evidence and agreement requested by the Company referred to in Section 2.1(b)
above and (iv) a sum equal to the Exercise Price for all Warrant Shares being
purchased pursuant to the exercise of this Warrant in the form of a cashiers'
check or wire transfer.
2.3 ISSUANCE OF WARRANT SHARES. Upon the Holder's exercise of
this Warrant, the Company shall issue the Warrant Shares so purchased to the
Holder and within two Business Days shall cause to be executed and delivered
to the Holder a certificate or certificates representing the aggregate number
of fully-paid and nonassessable shares of Common Stock issuable upon such
exercise. The stock certificate or certificates for Warrant Shares so
delivered shall be in such denominations as may be specified in such notice
and shall be registered in the name of the Holder. Such certificate or
certificates shall be deemed to have been issued and the Holder shall be
deemed to have become a holder of record of such shares, with the right, to
the extent permitted by law, to vote such shares or to consent or to receive
notice as a stockholder, as of the close of business on the date all of the
conditions referred to in Section 2.1 are satisfied (including, without
limitation, the obtaining of any requested declaratory ruling from the
Federal Communications Commission) and all of the items specified in Section
2.2 above are delivered to the Company. If this Warrant shall have been
exercised only in part the Company shall, within two Business Days of
delivery of such certificate or certificates, deliver to the Holder either
(i) a new warrant dated the date it is issued evidencing the rights of the
Holder to purchase the remaining Warrant Shares called for by this Warrant or
(ii) this Warrant bearing an appropriate notation of
4
such partial exercise. The Holder shall pay all expenses, transfer taxes and
other charges payable in connection with the preparation, issuance and
delivery of stock certificates under this Section 2.
2.4 CLASS OF SHARES ISSUED. If the Holder is a Permitted Holder,
the Holder may elect to receive shares of Class V Common Stock or shares of
Class A Common Stock upon exercise of this Warrant. If the Holder is not a
Permitted Holder, the Company shall issue to the Holder shares of Class A
Common Stock upon exercise of this Warrant.
SECTION 3. TRANSFER OF WARRANT.
3.1 RESTRICTIONS ON TRANSFER. Subject to Section 5 hereof, this
Warrant and all Warrant Shares issued hereunder may be sold, transferred,
pledged or hypothecated (collectively, "Transferred") to any third party.
Any certificate for any Warrant Shares issued hereunder shall be stamped or
otherwise imprinted with legends in substantially the form of the legends
contained on the first page hereof.
3.2 MECHANICS OF TRANSFERS. Subject to satisfaction of the
conditions set forth in Section 3.1, this Warrant and all rights hereunder
are transferable, in whole or in part, on the books of the Company to be
maintained for such purpose, upon surrender of this Warrant at the office of
the Company, together with a written assignment of this Warrant duly executed
by the Holder or its agent or attorney. Upon such surrender, the Company
shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denominations specified in such instrument
of assignment, and this Warrant shall promptly be canceled. This Warrant, if
properly Transferred in compliance with this Section 3, may be exercised by
an assignee for the purchase of Warrant Shares without having a new Warrant
issued.
SECTION 4. ADJUSTMENT OF WARRANT SHARES; ANTI-DILUTION PROVISIONS.
If any of the following events occurs at any time hereafter prior
to the full exercise of this Warrant, then the Exercise Price and/or the
number of Warrant Shares remaining to be purchased hereunder immediately
prior to such event shall be adjusted as described below:
4.1 REDEMPTIONS AND REPURCHASES. If at any time there is a pro rata
(based upon the respective number of outstanding shares of each class)
redemption or repurchase of the Class A Common Stock, Class P Common Stock,
Class T Common Stock, and Class V Common Stock, the number of Warrant Shares
remaining to be purchased hereunder shall be decreased by a percentage equal to
the percentage of Common Stock so redeemed or repurchased.
4.2 STOCK SUBDIVISIONS OR STOCK CONSOLIDATIONS. If at any time the
outstanding shares of Class A Common Stock, Class P Common Stock, Class T Common
5
Stock, and Class V Common Stock are subdivided into a greater number of
shares, whether by stock split, stock dividend or otherwise, then the
Exercise Price will be reduced proportionately and the number of Warrant
Shares remaining to be purchased hereunder, will be increased
proportionately. Conversely, if at any time the outstanding shares of Class
A Common Stock, Class P Common Stock, Class T Common Stock, and Class V
Common Stock are consolidated into a smaller number of shares, then the
Exercise Price will be increased proportionately and the number of Warrant
Shares remaining to be purchased hereunder, will be reduced proportionately.
Each adjustment to the Exercise Price and the number of Warrant Shares shall
be effective on the record date, or if there is no record date, the effective
date for such subdivision or consolidation.
4.3 CONSOLIDATION, MERGER OR SALE OF ASSETS. If the Company shall
at any time (i) consolidate with or merge into another corporation or (ii)
merge with another corporation and be the surviving corporation in such
merger, and in connection therewith all or part of the Class V Common Stock
or Class A Common Stock shall be changed into or exchanged for securities of
any other entity or cash or other property, the Holder of this Warrant will
thereafter receive, upon the exercise hereof in accordance with the terms
hereof, the securities, cash or other property to which the holder of the
number of shares of Common Stock then deliverable upon the exercise of this
Warrant would have received upon such consolidation or merger, and the
Company shall take such steps in connection with such consolidation or merger
as may be necessary to assure that the provisions thereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities or
property thereafter deliverable upon the exercise of this Warrant. The
Company or the successor corporation, as the case may be, shall execute and
deliver to the Holder a supplemental Warrant so providing. A sale of all or
substantially all the assets of the Company for a consideration (apart from
the assumption of obligations) consisting primarily of securities shall be
deemed a consolidation or merger for the foregoing purposes. The provisions
of this Section 4.3 similarly shall apply to successive mergers or
consolidations or sales or other transfers.
4.4 DIVIDENDS. If the Company proposes to declare a dividend on
or make a distribution with respect to the Class V Common Stock or Class A
Common Stock, whether in cash, property or securities, the Company will
deliver written notice of such proposed event, in reasonable detail, to the
Holder not less than fifteen (15) days prior to the record date for such
dividend or distribution.
4.5 NOTICES. When any adjustments are required to be made under
this Section 4, the Company shall as promptly as practicable (i) determine
such adjustments, (ii) prepare a statement describing in reasonable detail
the method used in arriving at the adjustment and setting forth the
calculation thereof; and (iii) cause a copy of such statement to be mailed to
the Holder.
6
4.6 COMPUTATIONS AND ADJUSTMENTS. Upon each computation of an
adjustment under this Section 4, the Exercise Price shall be computed to the
nearest 1/1000 cent and the number of Warrant Shares shall be calculated to
the nearest whole share (i.e., fractions of less than one-half shall be
disregarded and fractions of one-half or greater shall be treated as being
the next greater integer). However, the fractional amount shall be used in
calculating any future adjustments.
SECTION 5. SECURITIES LAWS. The Holder of this Warrant, by
acceptance hereof, acknowledges that this Warrant and the Warrant Shares
which may be issued pursuant thereto have not been registered under the
Securities Act, or applicable state securities laws. The Holder of this
Warrant, by acceptance hereof, represents that it is fully informed as to the
applicable limitations upon any distribution or resale of the Warrant Shares
under the Securities Act or any applicable state securities laws and agrees
not to distribute or resell any Warrant Shares if such distribution or resale
would constitute a violation of the Securities Act or any applicable state
securities laws or would cause the issuance by the Company of the Warrant or
the Warrant Shares to be in violation of the Securities Act or any applicable
state securities laws. The Holder agrees that all certificates representing
Warrant Shares will carry an appropriate legend substantially in the form of
the first legend contained on the first page hereof. Any exercise hereof by
the Holder shall constitute a representation by the Holder that the Warrant
Shares are not being acquired with the view to, or for resale in connection
with, any distribution or public offering thereof in violation of the
Securities Act or applicable state securities laws.
SECTION 6. NO VOTING RIGHTS. This Warrant shall not entitle the
holder hereof to any voting rights or other rights as a stockholder of the
Company.
SECTION 7. RESERVATION OF WARRANT SHARES. The Company has
reserved and will keep available, out of the authorized and unissued shares
of Common Stock, the full number of shares sufficient to provide for the
exercise of the rights of purchase represented by this Warrant. Upon
issuance and delivery against payment pursuant to the terms of this Warrant,
all Warrant Shares will be validly issued, fully paid and nonassessable.
SECTION 8. LOSS, DESTRUCTION OF WARRANT. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of any Warrant and, in the case of any such loss,
theft or destruction, upon receipt of an indemnity satisfactory to the
Company or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company will make and deliver, in lieu of
such lost, stolen, destroyed or mutilated Warrant, a new Warrant of like
tenor and representing the right to purchase the same aggregate number of
shares of Common Stock.
7
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 AMENDMENTS. The terms of this Warrant may be amended, and the
observance of any term herein may be waived, but only with the written
consent of the Holder and the Company. If at any time this Warrant is split
into multiple Warrants, any consent to be given by the Holder with respect to
any amendment hereto shall be made by the Holders of Warrants exercisable for
a majority of the unissued Warrant Shares, provided that no amendment may
change the number of Warrant Shares or the Exercise Price without the written
consent of the Holders all Warrants.
9.2 JURISDICTION; VENUE; SERVICE OF PROCESS. The Company and the
Holder each irrevocably submits to the jurisdiction of any California State
or United States Federal court sitting in Los Angeles County in any action or
proceeding arising out of or relating to this Warrant or the transactions
contemplated hereby, and irrevocably agrees that any such action or
proceeding may be heard and determined only in such California State or
Federal court. Each of the parties irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of any such action or proceeding. Each of the parties
irrevocably appoints CT Corporation System (the "PROCESS AGENT"), with an
office on the date hereof at 000 Xxxx 0xx Xxxxxx, Xxx Xxxxxxx, XX 00000 as
his or its agent to receive on behalf of him or it and his or its property
service of copies of the summons and complaint and any other process which
may be served in any such action or proceeding. Such service may be made by
delivering a copy of such process to any of the parties in care of the
Process Agent at the Process Agent's above address, and each of the parties
irrevocably authorizes and directs the Process Agent to accept such service
on its behalf. As an alternate method of service, each of the parties
consents to the service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding by the mailing
or delivering of a copy of such process to such party at its address
specified in or pursuant to Section 9.3. Each of the parties agrees that a
final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
9.3 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing, shall be deemed duly given upon
actual receipt, and shall be delivered (a) in person, (b) by registered or
certified mail (air mail if addressed to an address outside of the country in
which mailed), postage prepaid, return receipt requested, (c) by a generally
recognized overnight courier service which provides written acknowledgement
by the addressee of receipt, or (d) by facsimile or other generally accepted
means of electronic transmission (provided that a copy of any notice
delivered pursuant to this clause (d) shall also be sent pursuant to clause
(b)), addressed as follows:
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(i) If to the Company:
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx
1999 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
(ii) If to the Holder:
Venevision International Limited
000 Xxxxxxxx Xxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxx
Telecopier: (000) 000-0000
with copies to:
Finser Corp.
000 Xxxxxxxx Xxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
and
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X'Xxxx
Telecopier: (000) 000 0000
or to such other addresses as may be specified by like notice to the other
parties.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
in its name by its President or a Vice President.
Dated: October 2, 1996
---------
UNIVISION COMMUNICATIONS INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name:
Title:
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