Exhibit 10.3
TV FILME, INC.
STOCKHOLDERS AGREEMENT
AGREEMENT, dated as of July 26, 1996, among Warburg, Xxxxxx
Investors, L.P. ("Warburg"), Tevecap S.A. ("Tevecap"), Xxxxx Xxxx Studart Lins
de Albuquerque ("Xxxxx Xxxx Xxxx"), Xxxxxxx Xxxxxxx Xxxx de Albuquerque
("Xxxxxxx Xxxx"), Xxxxxx Xxxxx Xxxxxxx Xxxx de Albuquerque ("Xxxxxx Xxxxx Xxxx")
and Xxxxx Xxxxxxxx Xxxxxxx Xxxx de Albuquerque ("Xxxxx Xxxxxxxx Xxxx" and with
Xxxxx Xxxx Xxxx, Xxxxxxx Xxxx and Xxxxxx Xxxxx Xxxx, the "Xxxx Family") (each
hereinafter referred to individually as a "Stockholder" and collectively as the
"Stockholders").
W I T N E S S E T H :
WHEREAS, each Stockholder is the owner of shares of common stock,
par value $.01 per share (the "Common Stock"), of TV Filme, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, the Company is contemplating an initial public offering
(the "Initial Public Offering") of its Common Stock; and
WHEREAS, the Stockholders desire to regulate certain aspects of the
relationship between the Stockholders and among the Stockholders as such and
desire to enter into this Agreement in order to effectuate such purposes;
NOW, THEREFORE, in consideration of the premises and of the
covenants, terms and conditions herein contained, the parties hereto mutually
agree as follows:
1. Election of Directors.
(a) (i) For so long as Tevecap and any persons or entities
directly or indirectly controlling, controlled by or under common control (an
"Affiliate") with Tevecap (a "Tevecap Affiliate") own beneficially in the
aggregate at least 13% of the outstanding shares of Common Stock, Warburg and
the Lins Family each agree to vote the shares of Common Stock of the Company
owned by them, respectively, for two (2) individuals designated by Tevecap to be
elected to the Board of Directors of the Company (the "Board"); and (ii) for so
long as Tevecap and any Tevecap Affiliates own beneficially in the aggregate at
least 5% of the outstanding shares of Common Stock, Warburg and the Lins Family
each agree to vote the Common Stock of the Company owned by them, respectively,
for one (1) individual designated by Tevecap to be elected to the Board.
(b) In the event that any director (a "Withdrawing Director")
designated in the manner set forth in Section 1(a) hereof is unable to serve, or
once having commenced to serve, is removed or withdraws from the Board, such
Withdrawing Director's replacement (the "Substitute Director") will be
designated by Tevecap. Warburg and the Lins Family each agree to vote the shares
of Common Stock of the Company beneficially owned by them, respectively, for the
election to the Board of such Substitute Director promptly following his or her
designation pursuant to this Section 1(b).
2. Tevecap Right of First Offer with Respect to Block Transfers by
Warburg.
(a) In the event that Warburg desires to make a Block Transfer
(as hereinafter defined) of its shares of Common Stock of the Company (the
"Warburg Subject Shares") other than to Affiliates of Warburg or to the limited
partners of Warburg, Warburg shall so notify Tevecap (the "Warburg Notice"). For
purposes of this Agreement, a Block Transfer shall mean a private sale of an
amount of shares of Common Stock equal to at least 20% of the Company's then
outstanding shares of Common Stock, to a single purchaser (or group of related
purchasers) in one transaction (or a series of related transactions).
(b) Tevecap may, within ten days following the receipt of the
Warburg Notice, by delivering a written notice to Warburg (a "Tevecap First
Offer Notice"), offer to purchase all, but not less than all, of the Warburg
Subject Shares at a cash price set forth in the Tevecap First Offer Notice.
Warburg may, if it so elects, accept the Tevecap First Offer Notice within ten
days following receipt of the Tevecap First Offer Notice, by written notice to
Tevecap, in which event Warburg and Tevecap shall be obligated to consummate
such transaction at a closing on a date scheduled by Warburg not less than three
nor more than seven days following Warburg's acceptance notice.
(c) If Tevecap timely delivers a Tevecap First Offer Notice
and if Warburg shall not so elect to accept it, Warburg shall have the right,
for an additional ten days following the end of such ten day period, to agree to
make a Block Transfer of all, but not less than all, of the Warburg Subject
Shares to any person or entity (a "Third Party") at a price higher than the
price set forth in the Tevecap First Offer Notice, provided that such Block
Transfer is consummated within seven days from the date of such agreement and
provided, further, that the price offered by such Third Party (the "Third Party
Offer Price") is not less than 10% higher than the price set forth in the
Tevecap First Offer Notice. If the Third Party Offer Price is less than 10%
higher than the price set forth in the Tevecap First Offer Notice, then Warburg
shall notify Tevecap of such Third Party Offer Price, enclosing a copy of the
offer from such Third Party, and Tevecap shall have the right within ten days
after receipt of such notice to acquire all, but not less than all, of the
Warburg Subject Shares on the same terms offered by such Third Party. If Warburg
has not agreed to make a Block Transfer of the Warburg Subject Shares within
such ten day period, Warburg may elect to accept the Tevecap First Offer Notice
within two days following the end of such ten day period, in which event Warburg
and Tevecap shall be obligated to consummate such transaction at a closing on a
date scheduled by Warburg not less than three nor more than seven days following
Warburg's acceptance notice.
3. Tag-Along Rights. If Warburg proposes to make a Block Transfer of
its shares of Common Stock of the Company other than to Affiliates of Warburg or
to the limited partners of Warburg, the Lins Family shall be offered, as
provided below, the opportunity in connection with such proposed Block Transfer
to sell its Common Stock on the same terms and conditions as those received by
Warburg. Warburg shall give no less than five days' prior written notice of the
proposed sale, including the name and address of the proposed purchaser, the
number of shares of Common Stock proposed to be sold, the proposed price per
share and the other terms and conditions of the proposed sale, to the Lins
-2-
Family. The Lins Family may, if it so elects, accept the offer by written notice
to Warburg within five business days after notice of the transaction is given,
and then shall have the opportunity to sell to the purchaser(s) in such sale
that number of shares of Common Stock owned by the Lins Family such that the
number of shares to be sold to such purchaser(s) by the Lins Family, as a
percentage of the outstanding Common Stock owned by the Lins Family as of the
last day of such five business day period, shall equal the number of shares to
be sold to such purchaser(s) by Warburg, as a percentage of the outstanding
Common Stock owned by Warburg as of the last day of such five business day
period. The number of shares of Common Stock to be sold by Warburg shall be
reduced proportionately to the extent necessary to provide for the sale of
Common Stock by the Lins Family. Without limitation of the foregoing, the
foregoing rights shall apply in the context of a Block Transfer subject to
Section 2 hereof.
4. Miscellaneous.
4.1. Effective Date. This Agreement shall be effective
automatically upon consummation of the Initial Public Offering.
4.2. Term. This Agreement shall terminate as to Sections 2 and
3 hereof on July 20, 1999.
4.3. Injunctive Relief. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved person
will be irreparably damaged and will not have an adequate remedy at law. Any
such person shall, therefore, be entitled to injunctive relief, including
specific performance, to enforce such obligations, and if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law. Such remedies and all other remedies that may be provided for in this
Agreement shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this Agreement or
otherwise.
4.4. Notices. All notices, statements, instructions or other
documents required to be given hereunder (collectively, "Notices"), shall be in
writing and shall be given either by hand delivery or by facsimile transmission,
addressed as follows:
if to Warburg, to:
Warburg, Xxxxxx Investors, L.P.
c/o X.X. Xxxxxxx, Xxxxxx & Co., Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attention: Xxxxxxx X. Xxxx
-3-
with a copy to:
Xxxxxxx Xxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attention: Xxxx Xxxxxxxxxx, Esq.
if to Tevecap, to:
Televisao Abril
Xxx Xx Xxxxx 000
Xxx Xxxxx, XX 00000-000, Xxxxxx
Facsimile No.: 011-55-11-828-9200
Attention: Xxxx Xxxxxx Xxxxxxx, General Counsel
with a copy to:
Xxxxx Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
if to the Lins Family, to:
c/o TV Filme, Inc.
c/o ITSA-Intercontinental Telecomunicacoes Ltda.
SCS, Quadra 07-Bl.A
Ed. Executive Tower, Sala 000
00.000-000 Xxxxxxxx-XX, Xxxxxx
Facsimile No.: 011-55-61-323-5660
Attention: Hermano Studart Lins de Albuquerque
with a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxx, Esq.
Each Stockholder, by written notice given to the other parties hereto in
accordance with this Section 4.4 may change the address to which notices,
statements, instructions or other documents are to be sent to such Stockholder.
All such notices, statements, instructions and other documents hereunder shall
be deemed to have been given when received.
-4-
4.5. Governing Law. Regardless of the place of execution, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, applicable to contracts made and to be performed entirely
within such state.
4.6. Headings. All headings are inserted herein for
convenience only and do not form a part of this Agreement.
4.7. Entire Agreement. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter contained
herein and supersedes all prior written agreements and negotiations and oral
understandings, if any, and this Agreement may not be amended, supplemented or
discharged except by an instrument in writing signed by the parties hereto. In
the event that any Stockholder shall be required, as a result of the enactment,
amendment or modification, subsequent to the date hereof, of any applicable law
or regulation, or by the order of any governmental authority, to take any action
which is inconsistent with or which would constitute a violation or breach of
any terms of this Agreement, then the Stockholders shall use their best efforts
to negotiate an appropriate amendment or modification of, or waiver of
compliance with, such terms.
4.8. No Waiver. No failure to exercise and no delay in
exercising any right, power or privilege of a party hereunder shall operate as a
waiver or a consent to the modification of the terms hereof unless given by that
party in writing.
4.9. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties. Each Stockholder may assign its rights herein to any purchaser of the
capital stock of the Company purchased by it.
4.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-5-
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the date first above written.
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co., its general partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title:
TEVECAP S.A.
By: /s/ Xxxx Xxxxxxx Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx Xxxxx Xxxxxxx
Title:
By: /s/ Xxxxxxx Xxxxx D'xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxx D'xxxxxx
Title:
/s/ Xxxxx Xxxx Studart Lins de Albuquerque
-------------------------------------------------
Xxxxx Xxxx Studart Lins de Albuquerque
/s/ Hermano Studart Lins de Albuquerque
-------------------------------------------------
Hermano Studart Lins de Albuquerque
/s/ Xxxxxx Xxxxx Xxxxxxx Xxxx de Albuquerque
-------------------------------------------------
Xxxxxx Xxxxx Xxxxxxx Lins de Albuquerque
/s/ Xxxxx Xxxxxxxx Xxxxxxx Xxxx de Albuquerque
-------------------------------------------------
Xxxxx Xxxxxxxx Xxxxxxx Lins de Albuquerque
-6-