EXHIBIT 10.4
STOCKHOLDERS AGREEMENT DATED AS OF DECEMBER 15, 2000 BETWEEN TELEMUNDO
COMMUNICATIONS GROUP, INC., STATION PARTNERS, LLC, COUNCIL TREE HISPANIC
BROADCASTERS II, L.L.C., BCF MEDIA, LLC, BASTION CAPITAL FUND, L.P.,
XXXX-XXXXXXXXXX CAPITAL, LLC, SONY PICTURES ENTERTAINMENT INC. AND LIBERTY MEDIA
CORPORATION
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT ("Agreement") is made as of December 15,
2000 ("Effective Date") by and among Telemundo Communications Group, Inc., a
Delaware corporation (the "Company"), Station Partners, LLC, a Delaware limited
liability company ("Station Partners"), Council Tree Hispanic Broadcasters II,
L.L.C., a Delaware limited liability company ("Council Tree"), BCF Media, LLC, a
Delaware limited liability company ("BCF"), Bastion Capital Fund, L.P., a
Delaware limited partnership ("Bastion"), Xxxx-Xxxxxxxxxx Capital, LLC, a
Delaware limited liability company ("BV Capital"), Sony Pictures Entertainment
Inc., a Delaware corporation ("SPE") and Liberty Media Corporation, a Delaware
corporation ("Liberty") (Station Partners, SPE, Liberty and BV Capital are
hereinafter sometimes referred to as the "Stockholders") (together, the Company,
Council Tree, BCF, Bastion and the Stockholders are the "Parties"), with
reference to the following facts:
A. SPE owns, in the aggregate, 235,779 shares of the Class A common
stock, par value $0.01 per share, of the Company (the "Class A Common Stock").
B. Liberty owns, in the aggregate, 587,568 shares of the Class A Common
Stock.
C. Station Partners owns, in the aggregate, 444,861 shares of the Class
B common stock, par value $0.01 per share, of the Company (the "Class B Common
Stock" and together with the Class A Common Stock, collectively referred to as
the "Holder's Common Stock").
D. BV Capital owns, in the aggregate, 83,581 shares of the Class A
Common Stock.
E. Bastion, BCF, BV Capital, Council Tree, Council Tree Communications,
LLC, Council Tree Communications V, LLC, Liberty, SPE and the Company have
entered into a Contribution Agreement, dated as of August 22, 2000, as amended
December 15, 2000 (the "Contribution Agreement"). The Parties are entering into
this Agreement in connection with the consummation of the transactions
contemplated by the Contribution Agreement, and to the extent any provisions
herein conflict with the terms of the Contribution Agreement, the parties hereto
expressly waive any such conflicting provisions of the Contribution Agreement.
F. Concurrently with the transactions contemplated by the Contribution
Agreement, SPE Mundo Investment Inc., a California corporation and an indirect
wholly owned subsidiary of SPE ("SPE Mundo"), contributed to the Company
membership interests of Network Group (as defined below) representing an
aggregate of 17% of the outstanding membership of Network Group in exchange for
119,608 shares of Class A Common Stock which it now owns.
G. SPE Mundo owns Class B Membership Interests of Network Group
exchangeable into 232,181 shares of Class A Common Stock, subject to adjustment.
H. The Stockholders desire to maximize the long-term strategic values
of their respective companies, and have determined that it is in their
respective best interests to achieve this objective by entering into this
Agreement for the purpose of setting forth certain of the terms which shall
govern their relationship.
I. This Agreement supersedes in its entirety that certain Stockholders
Agreement dated as of August 12, 1998.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
When used in this Agreement, the following terms shall have the
meanings set forth below (all terms used in this Agreement that are not defined
in this Article 1 shall have the meanings set forth elsewhere in this
Agreement):
"Affiliate" means with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries,
Controls, is Controlled by or is under common Control with, such
specified Person.
"Aggregate Maximum Contribution Amount" shall have the meaning
given in Section 4.2.
"Agreement" shall mean this Stockholders' Agreement, as
originally executed and as amended from time to time.
"AT&T Broadband" means AT&T Broadband, LLC, a Delaware limited
liability company.
"AT&T" means AT&T Corp.
"Bastion" shall have the meaning given in the preamble to this
Agreement.
"Bastion Controlled Affiliate" shall mean Bastion Partners,
L.P., BCF and Bastion Capital Corp. and/or any other Person with
respect to which the investment decisions as to the exercise of voting
or consensual rights and other material decisions are ultimately
controlled by substantially the same individual or individuals at the
time controlling such decisions as to any of such entities (including,
without limitation, such individual or individuals themselves).
"BCF" shall have the meaning given in the preamble to this
Agreement.
"Beneficially Owned" shall have the meaning given such term in
Rule 13d-3 under the Exchange Act.
"Board" means the Board of Directors of the Company.
"Budget" shall have the meaning given in Section 2.7.3.
"Business Day" means any day that is not a Saturday, a Sunday
or any day on which banks are required or authorized by law to be
closed in the City of New York.
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"Business Plan" shall have the meaning given in Section 2.7.2.
"BV Capital" shall have the meaning given in the preamble to
this Agreement.
"BV Capital Controlled Affiliate" shall mean Xxxx-Xxxxxxxxxx
Capital, LLC and/or any other Person with respect to which the
investment decisions as to the exercise of voting or consensual rights
and other material decisions are ultimately controlled by substantially
the same individual or individuals at the time controlling such
decisions as to any of such entities (including, without limitation,
such individual or individuals themselves).
"BV Capital Put/Call Agreement" means that certain Put/Call
Agreement, dated as of the date hereof, by and among BV Capital, SPE
and Liberty, as it may be amended from time to time.
"Bylaws" means the Bylaws of the Company in existence at the
date hereof or amended from time to time hereafter, with the approval
of the Board and the unanimous approval of the Stockholders.
"Capital Call Default Amount" shall have the meaning given in
Section 4.5.
"Capital Call Defaults" shall have the meaning given in
Section 4.5.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company in existence at the date hereof or as
amended from time to time hereafter, with the approval of the Board and
the unanimous approval of the Primary Stockholders as set forth in
Section 2.6.
"Change in Control" with respect to Liberty or SPE shall be
deemed to occur if the shares of Holder's Common Stock held by such
Stockholder are not Beneficially Owned at least 50% by the Ultimate
Parent Entity of such Stockholder.
"Class A Common Stock" shall have the meaning given in Recital
A to this Agreement.
"Class B Common Stock" shall have the meaning given in Recital
E to this Agreement.
"Closing" shall mean, December 15, 2000, the date that the
consummation of the transactions contemplated by the Contribution
Agreement occurred.
"Common Stock" shall mean the common stock, par value $.01 per
share, of the Company.
"Communications Act" means the Communications Act of 1934, as
amended, and the FCC rules and regulations promulgated thereunder.
"Company" shall have the meaning given in the preamble to this
Agreement.
"Company Common Stock" shall collectively mean the Common
Stock and the Holder's Common Stock.
"Contribution Agreement" shall have the meaning given in
Recital G to this Agreement.
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"Control" (and the related terms "Controlling" and
"Controlled") means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Controlled Affiliate" shall mean (i) with respect to SPE, any
Ultimate Parent Entity of SPE and any Person which is Controlled,
directly or indirectly, by SPE or any Ultimate Parent Entity of SPE and
(ii) with respect to Liberty any Ultimate Parent Entity of Liberty and
any Person which is Controlled, directly or indirectly, by Liberty or
any Ultimate Parent Entity of Liberty.
"Council Tree" shall have the meaning given in the preamble to
this Agreement.
"Council Tree Entity" means any person or entity a majority of
the ownership interests of which are owned by Affiliates of Madison
Dearborn Partners, Inc. and of which Xxxxx Xxxxxxx is President or
Chief Executive Officer.
"DGCL" means the General Corporation Law of the State of
Delaware, as in effect from time to time.
"Dilution Amount" shall have the meaning given in Section 4.5.
"Discretionary Capital Call" shall have the meaning given in
Section 4.3.
"Discretionary Capital Contribution" shall have the meaning
given in Section 4.3.
"Drag Along Notice" shall have the meaning given in Section
3.3.7(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Agreement" shall mean that certain Exchange
Agreement dated as of the date hereof, among SPE, SPE Mundo and the
Company, as it may be amended from time to time.
"Effective Date" shall have the meaning given in the preamble
to this Agreement.
"FCC" means the Federal Communications Commission.
"First Offer Election Notice" shall have the meaning given in
Section 3.3.6.
"First Offer Notice" shall have the meaning given in Section
3.3.6.
"First Offer Partial Election Notice" shall have the meaning
given in Section 3.3.9.
"First Offer Partial Notice" shall have the meaning given in
Section 3.3.9.
"First Offer Period" shall have the meaning given in Section
3.3.6.
"Fully Diluted" shall mean that all outstanding options,
warrants, rights or other convertible securities of the Company have
been converted into Company Common Stock, including that the Class B
Membership Interests of Network Group have been exchanged for Class A
Common Stock in accordance with the terms of the Exchange Agreement,
and assuming the payment of any option, exercise or conversion price
payable with respect thereto.
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"Governmental Entity" shall mean any federal, state or local
government or regulatory agency, authority, commission or
instrumentality.
"Holder's Common Stock" shall have the meaning given in
Recital E to this Agreement.
"Indenture" means that certain Indenture dated as of August
12, 1998 between Telemundo Holdings, Inc. and Bank of Montreal Trust
Company, as Trustee, as it may be amended from time to time.
"Independent Director" means a director of the Company
designated as an independent director pursuant to the provisions of
Section 2.1 hereof.
"Initial Proposed Price" shall have the meaning given in Section 3.3.9.
"Insolvency Event" means the taking of any of the following
actions by the Company or any of its Subsidiaries: (a) the Company or
any of its Subsidiaries institutes proceedings to be adjudicated
voluntarily bankrupt; (b) the Company or any of its Subsidiaries
consents to the filing of a bankruptcy proceeding against the Company
or such Subsidiary; (c) the Company or any of its Subsidiaries files a
petition or answer or consent seeking reorganization under any
bankruptcy or similar law or statute; (d) the Company or any of its
Subsidiaries consents to the filing of any petition, or to the
appointment of a custodian, receiver, liquidator, trustee or assignee
in bankruptcy or insolvency of the Company or such Subsidiary or any
substantial part of its assets or property; or (e) the Company or any
of its Subsidiaries makes a general assignment for the benefit of
creditors, or takes any corporate action in furtherance of any of the
foregoing.
"Intercompany Loans" shall mean loans between the Company and
Network Group.
"IPO" means an initial public offering of Company Common
Stock.
"Liberty" shall have the meaning given in the preamble to this
Agreement.
"Liberty Directors" shall have the meaning given in Section
2.1.1(b).
"Liberty Nominated Director" shall have the meaning given in
Section 2.1.1(a).
"Liberty Proxy" means the proxy granted by Liberty to Station
Partners to vote all of the shares of the Holder's Common Stock held by
Liberty, as it may be amended from time to time.
"Major Decision" means any of the following actions or
transactions or the entering into of any contract or agreement to do
any of the following actions or transactions described in clauses (a) -
(j) below, or any modification, amendment, enforcement, waiver,
extension, or renewal thereof (except as limited by the terms of said
clauses (a) - (j)):
(a) Any substantial change in the nature or scope of the Company's
broadcast business, which is that of owning and operating broadcast stations in
the United States and its territories that provide predominantly
Spanish-language or Hispanic-themed programming, or the acquisition of an
additional broadcast station or other substantial business;
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(b) Issuing or redeeming any equity or debt securities (other than
shares of Common Stock issuable in a Qualifying IPO, shares of Class A Common
Stock issuable in exchange for the Class B Membership Interests in Network
Group, shares of Class A Common Stock or Class B Common Stock issuable pursuant
to the conversion rights described in the Certificate of Incorporation or debt
securities issued to Network Group), or any options, warrants or other
securities which are convertible thereto (other than as granted and issued under
the Management Equity Program);
(c) Entering into any agreement with respect to or consummating any
merger, consolidation or reorganization of the Company or any of its
Subsidiaries;
(d) Sale or other transfer by the Company or any of its Subsidiaries in
a single transaction or series of related transactions, of all or substantially
all of the assets of the Company, of any broadcast station or of any other
assets in a single transaction or series of related transactions with a purchase
price in excess of $15 million;
(e) Taking any action relating to the termination, liquidation,
dissolution or winding up of the Company;
(f) Approval by any Subsidiary or Affiliate of the Company that owns a
membership interest in Network Group in connection with any action by Network
Group requiring unanimous approval of its members;
(g) Taking any action by the Company or any of its Subsidiaries that
would constitute an Insolvency Event for the Company or any of its Subsidiaries;
(h) Any related party transaction (including any execution of a
material amendment to an existing agreement) between any station, the Company,
Network Group or any of their direct or indirect Subsidiaries, on the one hand,
and any of the Stockholders or their Affiliates, on the other hand, except for
(i) agreements and transactions entered into prior to the date of this
Agreement, (ii) transactions between the Company or any of its Subsidiaries and
Network Group, (iii) ordinary course transactions on terms at least as favorable
to the station, the Company or its Subsidiary as could be obtained in an arm's
length transaction with an unrelated party and (iv) Intercompany Loans;
(i) Any amendments to this Agreement or the Company's charter
documents; and
(j) Any other decision or action which could reasonably be expected to
require any Stockholder to dispose of or otherwise restrict its management or
control over all or any portion of its Holder's Common Stock under the rules and
regulations of the FCC.
"Management" shall have the meaning given in Section 2.5.
"Management Equity Program" means that program instituted by
the Company to provide management with Common Stock that will not
exceed an aggregate of 7% of the aggregate outstanding Company Common
Stock (measured on a Fully Diluted basis).(1)
-----------
(1) Included in the 7% is the Company's assumption of the employment
agreements, including the obligations of Telemundo Holdings, Inc. and
Network Group currently in place with Xxxxx XxXxxxxx and Xxxx Xxxxx
with respect to
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"Mandatory Capital Call" shall have the meaning given in
Section 4.1(a).
"Network Group" means Telemundo Network Group LLC, a Delaware
limited liability company.
"Network Group Operating Agreement" means the Second Amended
and Restated Operating Agreement for the Network Group dated as of the
date hereof, as it may be amended from time to time.
"Offeree Stockholder" shall have the meaning given in Section
3.3.6.
"Partial First Offer Period" shall have the meaning given in
Section 3.3.9.
"Partial Offeree Stockholder" shall have the meaning given in
Section 3.3.9.
"Participating Stockholder" shall have the meaning given in
Section 3.3.8(c).
"Parties" shall have the meaning given in the preamble to this
Agreement.
"Payment Amount" shall have the meaning given in Section 4.5.
"Permitted Transferee" means the assignee of Company Common
Stock who acquires such Company Common Stock in a Permitted Transfer.
"Permitted Transfers" shall have the meaning given in Section
3.3.
"Person" means any individual, limited or general partnership,
limited liability company, limited liability partnership, corporation,
joint venture, business trust, joint stock company, trust, estate,
unincorporated association, Governmental Entity or other entity of
whatsoever nature.
"Primary Stockholders" shall mean Station Partners, Liberty
and SPE.
"Prime Rate" means a rate per annum equal to the commercial
lending rate announced from time to time by Chase Manhattan Bank (New
York, New York) or its successor, as its prime rate for ninety day
unsecured loans
"Proposed Price" shall have the meaning given in Section
3.3.6.
"Proportionate Share" shall mean the fraction whose numerator
is the number of shares of Holder's Common Stock owned by a Stockholder
and whose denominator is the total number of shares of Holder's Common
Stock.
"Qualifying IPO" means an IPO by the Company offering no less
than 10% nor more than 15% of the shares of Company Common Stock
outstanding on a Fully Diluted basis (as measured immediately after the
IPO) for a price per share reflecting an overall Company pre-IPO
valuation not less than (i) 33 1/3% above $1.089 billion for the first
12 months following the date
--------------------------------------------------------------------------------
grants of stock appreciation rights and the conversion of those stock
appreciation rights into options to acquire shares of Company Common Stock.
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hereof and (ii) 50% above $1.089 billion thereafter. Any Company Common
Stock issued in a Qualifying IPO will be shares of Common Stock, will
be offered only to U.S. citizens and will include a right to repurchase
any shares transferred to a non-U.S. citizen.
"Registration Rights Agreement" means the Registration Rights
Agreement by and among Station Partners, Liberty, SPE, BV Capital and
the Company dated as of the date hereof, as it may be amended from time
to time.
"Roll-Over Budget" shall have the meaning given in Section
2.7.3.
"Sale Notice" shall have the meaning given in Section
3.3.8(a).
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Partial Stockholder" shall have the meaning given in
Section 3.3.9.
"Selling Primary Stockholders" shall have the meaning given in
Section 3.3.7(a).
"Selling Stockholders" shall have the meaning given in Section
3.3.8(a).
"Senior Credit Facility" means that certain Credit Agreement
dated as of August 4, 1998, among TLMD Acquisition Co., a Delaware
corporation (now known as Telemundo Group, Inc.), as Borrower,
Telemundo Holdings, Inc., a Delaware corporation, as Parent Guarantor,
Credit Suisse First Boston, as Administrative Agent, as Collateral
Agent and as Issuing Bank and Canadian Imperial Bank of Commerce, as
Documentation Agent, and the lenders party thereto, together with the
related documents thereto (including, without limitation, any
guarantees, agreements and security documents), in each case, as such
agreements, in whole or in part, may be amended, increased (but only so
long as such increase is permitted under the terms of the Indenture) or
refinanced in whole or in part by one or more separate agreements.
"Sony Corporation" means Sony Corporation, a corporation
organized under the laws of Japan.
"Sony Corporation of America" means Sony Corporation of
America, a New York corporation.
"SPE" shall have the meaning given in the preamble to this
Agreement.
"SPE Directors" shall have the meaning given in Section 2.1.1.
"SPE Mundo" shall have the meaning given in Recital B to this
Agreement.
"Special Mandatory Capital Call" shall have the meaning given
in Section 4.1(b).
"Station Opportunities" shall have the meaning given in Article 5.
"Station Partners" shall have the meaning given in the
preamble to this Agreement.
"Station Partners Directors" shall have the meaning given in
Section 2.1.1.
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"Station Partners LLC Agreement" means that certain Operating
Agreement dated as of August 12, 1998, between Apollo and Bastion (or
BCF as Bastion's successor), as amended and restated as of the date
hereof, between BCF and Council Tree, as it may be amended from time to
time.
"Station Partners Put/Call Agreement" means that certain
Put/Call Agreement, dated as of the date hereof, by and among Station
Partners, SPE and Liberty, as it may be amended from time to time.
"Stockholder" shall have the meaning given in the preamble to
this Agreement.
"Stockholder Controlled Affiliate" means with respect to SPE
or Liberty, a Controlled Affiliate, with respect to Station Partners, a
Council Tree Entity or a Bastion Controlled Affiliate, and with respect
to BV Capital, a BV Capital Controlled Affiliate.
"Subsidiary" means, in respect of any Person, any corporation,
association, limited liability company, limited or general partnership
or other business entity of which more than 50% of the total voting
power of shares of capital stock or other interests (including
partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person, or (iii) one or more Subsidiaries of such
Person; provided that Network Group shall be deemed to be a Subsidiary
of the Company for all purposes under this Agreement.
"Substitute Capital Call" shall have the meaning given in
Section 4.4.
"Telemundo Sub" means Telemundo Network Interest, Inc., a
Delaware corporation.
"Total Maximum Contribution Amount" shall have the meaning
given in Section 4.2.
"Transfer" means, directly or indirectly (including, without
limitation, by way of any Transfer of an interest in Station Partners),
to sell, assign, convey, transfer, pledge, subject to lien, or
otherwise dispose or encumber, or to enter into any contract, option or
other arrangement or understanding with respect to any assignment,
conveyance, transfer, pledge, encumbrance or other disposition. The
terms "Transferor," "Transferee" and similar variations shall have
commensurate meaning.
"Transfer of Control Application" shall have the meaning given
in Section 7.1.6.
"Transferred Assets" shall have the meaning given in Section
3.3.2(d).
"Transferring Stockholder" shall have the meaning given in
Section 3.3.6.
"Ultimate Parent Entity" means, with respect to SPE, SPE, Sony
Corporation of America or Sony Corporation and, with respect to
Liberty, Liberty, AT&T Broadband or AT&T, and with respect to either of
them, any Transferee permitted pursuant to the provisions of Section
3.3.2(d) hereof.
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ARTICLE 2
CORPORATE GOVERNANCE
2.1 Board of Directors.
2.1.1 Composition of Board2.1.2 .
(a) Prior to any termination of the Liberty Proxy, the Board
shall be comprised of nine directors, consisting of (i) six designated directors
and (ii) three other nominated directors subject to the approval of the holders
of a majority of the voting power of the outstanding shares of Holder's Common
Stock. Of the six designated directors, (x) four directors shall be designees of
Station Partners (including any adjustment pursuant to subsection (b) below, the
"Station Partners Directors") and (y) two directors shall be designees of SPE
(the "SPE Directors"). Of the three nominated directors subject to the approval
of the holders of a majority of the voting power of the outstanding shares of
Holder's Common Stock, (A) one director shall be nominated by Liberty (the
"Liberty Nominated Director") and (B) the two independent directors (including
any adjustment pursuant to subsection (b) below, the "Independent Directors")
shall be nominated in accordance with the provisions of the immediately
succeeding sentence. Of the two Independent Directors, one director shall be
nominated by Station Partners, subject to the written approval of Liberty and
SPE, which approval shall not be unreasonably withheld, and one director shall
be nominated by Liberty and SPE, acting jointly, subject to the written approval
of Station Partners, which approval shall not be unreasonably withheld. The
Parties agree that it shall not be unreasonable to withhold approval of the
election of an independent director who is also an officer or employee of the
Company.
(b) From and after any termination of the Liberty Proxy, the
Board shall be comprised of nine directors, consisting of (i) six designated
directors and (ii) three other nominated directors subject to the approval of
the holders of a majority of the voting power of the outstanding shares of
Holder's Common Stock. Of the six designated directors, (x) two directors shall
be designees of Station Partners, (y) two directors shall be designees of SPE
and (z) two directors shall be designees of Liberty (the "Liberty Directors").
The three nominated directors subject to the approval of the holders of a
majority of the voting power of the outstanding shares of Holder's Common Stock
shall be considered "Independent Directors" and shall be nominated in accordance
with the provisions of the immediately succeeding sentence. Of these three
Independent Directors, one director shall be nominated by Station Partners,
subject to the written approval of Liberty and SPE, which approval shall not be
unreasonably withheld, one director shall be nominated by Liberty, subject to
the written approval of Station Partners and SPE, which approval shall not be
unreasonably withheld, and one director shall be nominated by SPE, subject to
the written approval of Station Partners and Liberty, which approval shall not
be unreasonably withheld. The Parties agree that it shall not be unreasonable to
withhold approval of the election of an Independent Director who is also an
officer or employee of the Company.
(c) The Liberty Nominated Director shall not be a past or
present officer, director or employee of Liberty or its Affiliates (including,
but not limited to, its parent company), nor will the Liberty Nominated Director
have any familial relationship with Liberty or its Affiliates. The Liberty
Nominated Director shall be elected by approval of the holders, other than
Liberty, of a majority of the voting power of the outstanding shares of Holder's
Common Stock. In the event
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that the Stockholders do not elect the specific nominee to the Board proposed by
Liberty, Liberty shall be entitled to submit alternative nominee(s) until such
time as the nominee submitted is elected to the Board by the Stockholders, and
the Stockholders shall promptly act to approve or disapprove any such nominee
upon submission by Liberty.
(d) With respect to the Independent Directors, in the event
that the Independent Director nominated by a party or parties is not approved
pursuant to subsections (a) or (b) above, then the party or parties whose
Independent Director is not approved shall be entitled to submit alternative
nominee(s) until such time as the nominee submitted is elected to the Board by
the Stockholders, and the Stockholders shall promptly act to approve or
disapprove any such nominee upon his submission.
(e) Each director designated or nominated by the Stockholders
as provided in this Section 2.1.1 must be a citizen of the United States.
(f) The directors shall be elected in accordance with this
Section 2.1 at each annual meeting of the Stockholders and shall hold office
until the next annual meeting of Stockholders. Each director, including a
director elected to fill a vacancy in accordance with Section 2.1.4, shall hold
office until the expiration of the term for which elected and until a successor
has been elected and qualified.
(g) Subject to the last sentence of Section 3.1 hereof, if any
of SPE or Liberty Transfers any of its Holder's Common Stock to a Permitted
Transferee pursuant to Section 3.3 herein, then designations and nominations of
directors, voting on Major Decisions as set forth in Section 2.6 and the
approval or consent to any of the matters referred to in Sections 2.5, 2.7.2,
2.7.3, 9.1 or 9.16, shall be made, at the option of such Stockholder and subject
to applicable regulatory requirements, by either the Stockholder party to this
Agreement as of the date hereof or, as between such Stockholder and its
Permitted Transferees, the party owning the largest number of shares of the
Holder's Common Stock initially held by such Stockholder. Subject to the last
sentence of Section 3.1 hereof, if Station Partners Transfers its Holder's
Common Stock to a Permitted Transferee pursuant to Section 3.3 herein, then
designations and nominations of directors, voting on Major Decisions as set
forth in Section 2.6 and the approval or consent to any of the matters referred
to in Sections 2.5, 2.7.2, 2.7.3, 9.1 or 9.16, shall be made, at the option of
Station Partners and subject to applicable regulatory requirements, by either
Station Partners or its Permitted Transferees.
2.1.2 Agreement to Vote. Each Stockholder agrees to vote, or
act by written consent (and to cause each of its Affiliates to vote, or act by
written consent, if applicable) with respect to, any shares of Holder's Common
Stock beneficially owned by it to cause the SPE Directors, the Liberty Nominated
Director (if applicable), the Station Partners Directors, each of the
Independent Directors and the Liberty Directors (if applicable) designated as
provided in Section 2.1.1 above to be elected to the Board, and the Company
agrees to use its best efforts to cause the election of each such designee to
the Board, including nominating such individuals to be elected as members of the
Board as provided herein. Notwithstanding any other provision in this Agreement
to the contrary, no Stockholder shall be required to elect any particular
nominee for the Liberty Nominated Director position or any of the Independent
Director positions.
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2.1.3 Removal. A director may be removed only by the party or
parties which originally designated or nominated the director, or in the case of
any Independent Director, by agreement of Station Partners, SPE and Liberty.
Upon the written request of SPE, Liberty or Station Partners, each Stockholder
shall vote or act by written consent (and cause each of its Affiliates to vote
or act by written consent, if applicable), with respect to, all shares of
Holder's Common Stock beneficially owned by it and otherwise take or cause to be
taken all actions necessary to remove any director designated or nominated by
such requesting party.
2.1.4 Filling Vacancies. In the event that a vacancy is
created at any time by the death, disability, retirement, resignation or removal
(with or without cause) of any SPE Director, Liberty Nominated Director (if
applicable), Station Partners Director, Independent Director or Liberty Director
(if applicable), the party or parties originally designating or designating for
nomination such director (as the case may be) shall have the right to designate
or designate for nomination a replacement director to fill such vacancy in
accordance with the procedures set forth in Sections 2.1.1 and 2.1.2.
2.1.5 Additional Agreements. Each Stockholder agrees not to,
and to cause each of its Affiliates not to, directly or indirectly, alone or in
concert with others (without the consent of each other Stockholder):
(a) Seek election to, seek to place a representative on,
or seek the removal of any member of, the Board, except pursuant to Sections
2.1.1, 2.1.3 and 2.1.4; or
(b) Deposit any shares of Holder's Common Stock in a
voting trust or subject any shares of Holder's Common Stock to any arrangement
or agreement with respect to the voting of such shares (other than pursuant to
the Liberty Proxy, the Station Partners LLC Agreement, this Agreement
(including, but not limited to, pledges pursuant to Sections 3.3.1(b), 3.3.2(f)
and 3.3.5(c) hereof) or as may otherwise be required by the FCC).
2.1.6 Termination of Rights and Obligations.
(a) The right of each Primary Stockholder to nominate or
designate a member or members of the Board or committees of the Board pursuant
to this Article 2, and all related obligations of the Company and each other
Stockholder with respect thereto contained in this Article 2, the right of a
Primary Stockholder to cause the Company to consummate a Qualifying IPO in
accordance with Article 6 and all of each Primary Stockholder's rights to
consent to Major Decisions pursuant to Section 2.6 shall terminate as follows:
(i) with respect to one of such Primary Stockholder's
Board member designations, when such Primary Stockholder ceases to beneficially
own at least 75% of the Company Common Stock beneficially owned by such Primary
Stockholder at the date of this Agreement (appropriately adjusted for stock
splits, dividends or combinations of shares of Company Common Stock); and
(ii) with respect to all other Primary Stockholder
Board member designations or nominations, a Primary Stockholder's right to
consent to the establishment of a Board committee, a Primary Stockholder's right
to cause the Company to consummate a Qualifying IPO in accordance with Article 6
or a Primary Stockholder's right to consent to a Major Decision, when such
Primary Stockholder ceases to beneficially own at least 50% of the Company
Common
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Stock beneficially owned by such Primary Stockholder at the date of this
Agreement (appropriately adjusted for stock splits, dividends or combinations of
shares of Company Common Stock).
(b) Upon the termination of any Primary Stockholder's right to
designate a member of the Board or Liberty's right to nominate the Liberty
Director, the size of the Board will be reduced accordingly. Upon the
termination of any Primary Stockholder's right to nominate an Independent
Director, the remaining Primary Stockholders shall jointly nominate such
director.
2.2 Cooperation. Each Stockholder shall vote (or act or not act by
written consent with respect to) all of its shares of Holder's Common Stock and
shall take all other necessary or desirable actions within its control
(including causing its respective designees or nominees to the Board to take all
actions or not take such actions required of the Stockholders pursuant to this
Agreement, attending all meetings in person or by proxy for purposes of
obtaining a quorum, executing all written consents in lieu of meetings and
voting to remove members of the Board, as applicable), and the Company shall
take all necessary and desirable actions within its control (including calling
special Board and Stockholder meetings, as applicable) to effectuate the
provisions of this Article 2.
2.3 Size of Board of Directors. The Company agrees not to take any
action that would cause the number of directors constituting the entire Board to
be other than nine and each Stockholder agrees to use its best efforts to cause
the number of directors constituting the entire Board to remain nine.
2.4 Board Procedures. The Company and the Stockholders shall each cause
the following procedures to be followed by the Board:
2.4.1 Meetings. The Board shall hold at least four (4)
regularly scheduled meetings per year at such times as may from time to time be
fixed by resolution of the Board and no notice (other than the resolution) need
be given as to a regularly scheduled meeting. Special meetings of the Board may
be held at any time upon 48 hours notice by any director. So long as Liberty
owns at least 15% of the outstanding shares of Holder's Common Stock, Liberty
shall have the right to receive notice of meetings of the Board. Written notice
of the time and place of special meetings shall be delivered personally to each
director by reliable overnight courier or communicated to each director by
facsimile or other form of recorded communication, charges prepaid, addressed to
each director at that director's address as it is shown on the records of the
Company or, if it is not so shown on such records or is not readily
ascertainable, at that director's residence or usual place of business. In case
such notice is delivered by reliable overnight courier, it shall be deemed
received within two Business Days following such delivery to the overnight
courier. In case such notice is delivered personally or by other form of written
communication, it shall be delivered at least 48 hours before the time of the
holding of the meeting. Reasonable efforts shall be made to insure that each
director actually receives timely notice of any such special meeting. A notice
must specify the purpose of any special meeting. Notice of a meeting need not be
given to any director who signs a waiver of notice or a consent to holding the
meeting (which waiver or consent need not specify the purpose of the meeting) or
an approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior to its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be filed
with the Company's records or made a part of the minutes of the meeting. A
majority of the directors present may adjourn any meeting to another time and
place. If the meeting is adjourned for more than twenty-four (24) hours, notice
of any adjournment shall be given prior to the time of the adjourned
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meeting to the directors who are not present at the time of the adjournment.
Meetings of the Board may be held at any place which has been designated in the
notice of the meeting or at such place as may be approved by the Board.
Directors may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all directors participating in such
meeting can hear one another. Participation in a meeting in such manner
constitutes presence in person at such meeting.
2.4.2 Agenda. A reasonably detailed agenda shall be supplied
to each director reasonably in advance of each meeting of the Board, together
with other appropriate documentation with respect to agenda items calling for
Board action, to inform adequately the directors regarding matters to come
before the Board. Any director wishing to place a matter on the agenda for any
meeting of the Board may do so by communicating with the chief executive officer
of the Company sufficiently in advance of the meeting of the Board so as to
permit timely dissemination to all directors of information with respect to the
agenda items.
2.4.3 Powers of the Board. Subject to the limitations included
in this Agreement and the Bylaws of the Company, the Board shall have the power
to approve transactions and to act in a manner as is customary for Delaware
corporations. In no event shall the Board establish an executive committee, or
any other committee of the Board, without the prior written consent of each of
the Primary Stockholders.
2.4.4 Voting. Subject to the provisions of Section 2.1.3,
2.4.5, 2.7.2 and 2.7.3 hereof, all actions of the Board shall require a majority
of the votes entitled to be cast as if all directors were present.
2.4.5 Subsidiaries. The Board shall also be the board of
directors of each Subsidiary of the Company; provided, however, that the Board
may, by majority vote including at least one SPE Director, one Liberty Director
and three Station Partners Directors, decide to change the composition of the
board of directors of any Subsidiary. The procedures set forth in this Section
2.4 shall govern the operations of the boards of directors of each Subsidiary of
the Company.
2.5 Officers. Subject to the limitations included in this Agreement,
the Bylaws and the Certificate of Incorporation, day-to-day management of the
operations of the Company shall be delegated to the officers of the Company who
will (except as otherwise specified herein) exercise such powers and perform
such duties as shall be determined from time to time by the Board, and who will
act in good faith to operate the Company's business in accordance with the
Budget and in a manner reasonably designed to achieve the goals of the Business
Plan. The Board shall not delegate to any officers of the Company the authority
to conduct business in any manner other than as set forth in the first sentence
of this Section 2.5. The officers of the Company shall consist of a chief
executive officer, a chief financial officer, and such other officers as the
Board determines from time to time to be appropriate ("Management"). The chief
executive officer shall report to the Board and all other officers shall report
to the chief executive officer or another officer designated by him or her. Each
Stockholder agrees that the appointment and remuneration or dismissal of the
chief executive officer and chief financial officer shall be made only on the
recommendation of Station Partners and the unanimous written approval of both
Station Partners and SPE.
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2.6 Major Decisions. Except as set forth in the following sentence, the
Company shall not, and shall cause its Subsidiaries not to, directly or
indirectly, take any action constituting a Major Decision without the unanimous
written approval of the Primary Stockholders. Any determination not specifically
included in the definition of "Major Decision" or otherwise specifically
identified in this Agreement as requiring approval of more than a majority of
the Board or a majority of the votes entitled to be a cast at a meeting of the
Stockholders shall, except to the extent required by the DGCL, be made by the
Board acting by majority vote of the authorized number of directors.
2.7 Conduct of Business; Approval of Business Plan and Budget.
2.7.1 Conduct of Business. The Stockholders each agree and
shall cause the Board and Management to act in good faith to operate the Company
and its Subsidiaries in accordance with the Budget and in a manner reasonably
designed to achieve the goals of the Business Plan.
2.7.2 Approval of Business Plan. The Stockholders hereby agree
on the initial business plan (the "Business Plan") of the Company and its
Subsidiaries, covering the period from the date of this Agreement until December
31, 2001. The Stockholders agree that the Business Plan shall not be amended or
modified except with 2/3 approval of the members of the Board.
2.7.3 Approval of the Budget. The Stockholders hereby agree
that the budget of the Company and its Subsidiaries, covering the period from
the date of this Agreement until December 31, 2001, will be based on the
business plans currently in place for Telemundo Holdings, Inc. and Network Group
and their Subsidiaries. On or prior to the date which is thirty (30) days before
the end of each calendar year, commencing with the calendar year ending December
31, 2001, the chief executive officer of the Company shall present to the Board
and Stockholders a budget for the following calendar year. The budget as
presented by the chief executive officer of the Company shall become the budget
(the "Budget") for such calendar year only when approved by 2/3 of the members
of the Board and, if required by the provisions of this Section 2.7.3, approved
by the Stockholders and shall not be effective or be implemented until such
approval is obtained. If, prior to the consummation of an IPO, the Board and, if
applicable, the Stockholders, do not approve the Budget for any calendar year
prior to March 1 of such year, then the Budget for that calendar year shall be
the Budget from the prior calendar year (excluding the prior year's
extraordinary and nonrecurring items, but including any contractually obligated
or legally required commitments or expenditures for the prior year in the
Business Plan), adjusted by a five percent (5%) increase in all fixed expenses
together with an adjustment of all variable expenses, such as utilities and
insurance, in accordance with the projected variances in their bases and
contractual commitments in accordance with their terms and excluding any
extraordinary expenses with respect to station acquisitions (a "Rollover
Budget"). Each Budget shall be approved by 2/3 of the members of the Board and
shall not require the approval of the Stockholders except if, during the 12
month period immediately preceding the date of submission of such Budget for
approval, Telemundo Group, Inc. has been in non-compliance (without giving
effect to any waivers or modifications within such 12 month period) under one or
more of the material financial covenants contained in the Senior Credit Facility
(unless Telemundo Group, Inc. shall have been in compliance with such covenants
(without giving effect to any waivers or modifications to such covenants within
such 12 month period) for the two fiscal quarters immediately preceding the
submission of such Budget for approval).
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2.8 Shares Held by Stockholder Controlled Affiliates. Each of the
Stockholders agrees that in the event any shares of Company Common Stock are
held by any of its Stockholder Controlled Affiliates (whether as of the date of
this Agreement or at some other date as a result of a Transfer in accordance
with Section 3.3), the Stockholder and its Stockholder Controlled Affiliates
that hold such shares shall be treated as one Stockholder for the purposes of
all provisions of this Agreement. Each Stockholder agrees that it will cause its
applicable Stockholder Controlled Affiliates to agree to be bound by the terms
and conditions of this Agreement and that to the extent the Stockholder is
entitled to make decisions pursuant to this Agreement, such decisions shall be
made by the Stockholder or one of its designated Stockholder Controlled
Affiliates. All Company Common Stock that is subject to a conditional or
collateral transfer in connection with a bona fide pledge, forward sale or
similar bona fide financing transaction shall be treated as beneficially held by
the Stockholder, until such time, if ever, that such Company Common Stock has
been foreclosed upon or such forward sale or similar financing transaction has
been consummated and in connection therewith the Company Common Stock has been
sold, assigned, conveyed, transferred or otherwise disposed of to the financing
source or its assignee such that the financing source or its assignee has become
the record holder of such Company Common Stock.
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General Prohibition on Transfer of Company Common Stock. Except for
Permitted Transfers, no Stockholder nor any of its Permitted Transferees shall
be entitled to Transfer (including, in the case of Council Tree and Bastion, by
way of any Transfer of an interest in Station Partners) any of the shares of
Company Common Stock or any interest therein held directly or indirectly by it.
Any attempted Transfer of shares of Company Common Stock other than a Permitted
Transfer shall be void ab initio and the Company shall not register any such
purported Transfer on its share register and such a purported Transfer
(including, in the case of Council Tree and Bastion, by way of any Transfer of
an interest in Station Partners) shall constitute a breach of this Agreement.
After the consummation of any Permitted Transfer of any shares of Company Common
Stock, the shares of Company Common Stock so Transferred shall continue to be
subject to the terms and provisions of this Agreement (other than shares of
Company Common Stock Transferred pursuant to Sections 3.3.1(c), 3.3.2(b) or
3.3.5(d)) and any further Transfers shall be required to comply with all the
terms and provisions of this Agreement. Notwithstanding any other provision of
this Agreement to the contrary, any Permitted Transferee, other than a
Stockholder who acquires such Stockholder's shares of Company Common Stock
pursuant to the provisions of Section 3.3.2(a), shall not be entitled to consent
(nor shall its consent be required) to any Major Decision as set forth in
Section 2.6 or any of the matters referred to in Sections 2.5, 2.7.2, 2.7.3, 9.1
and 9.16.
3.2 Permitted Transferees. Subject to the terms of this Agreement, any
Permitted Transferee of a Stockholder shall be subject to the terms and
conditions of this Agreement as if such Permitted Transferee were SPE (in the
case where SPE or a Permitted Transferee of SPE is the Transferor), Liberty (in
the case where Liberty or a Permitted Transferee of Liberty is the Transferor),
Station Partners (in the case where Station Partners or a Permitted Transferee
of Station Partners is the Transferor), Council Tree (in the case where Council
Tree or a Permitted Transferee of Council Tree is the Transferor), BV Capital
(in the case where BV Capital or a Permitted Transferee of BV Capital is the
Transferor) or Bastion or BCF (in the case where Bastion or BCF or
16
a Permitted Transferee of Bastion or BCF is the Transferor). Prior to the
initial acquisition of beneficial ownership of any Company Common Stock by any
Permitted Transferee (including, without limitation, by way of any Transfer of
an interest in Station Partners) and as a condition thereto, each Stockholder,
Council Tree, BCF and Bastion, as the case may be, agrees to cause its
respective Permitted Transferees to agree in writing with the other Parties
hereto to be bound by the terms and conditions of this Agreement to the extent
described in the preceding sentence. A Permitted Transfer shall not release any
Stockholder, Council Tree, BCF or Bastion from any liability that such Person
may have to the other Parties to this Agreement prior to the date of such
Transfer, but shall release the Transferor from all future obligations accruing
under this Agreement after the date of Transfer provided the Permitted
Transferee assumed all such obligations of the Transferor hereunder.
3.3 Permitted Transfers. The following Transfers of shares of Company
Common Stock shall be permitted ("Permitted Transfers"):
3.3.1 Station Partners. In the case of Station Partners and
its Permitted Transferees:
(a) Put/Call Agreement. A Transfer of all but not less
than all of the shares of Company Common Stock held by it effected pursuant to
the express provisions of the Station Partners Put/Call Agreement.
(b) Bona Fide Pledges. A pledge of shares of Company
Common Stock by Station Partners (or a pledge of the membership interests of
Station Partners by the members thereof) to a financial institution and, in
connection with a pledge by Station Partners, an assignment or transfer of the
associated put rights to such financial institution, in a bona fide transaction,
provided, that (i) no such pledgee shall be permitted to foreclose on such
pledge before the second anniversary of the date hereof or to exercise any
voting rights with respect to the Company Common Stock or membership interests,
as the case may be, and (ii) any pledgee shall agree to provide ten days prior
written notice to each Stockholder and the Company of its intent to foreclose on
the Company Common Stock or membership interests, as the case may be, and any
such foreclosure shall be subject to the rights of Liberty and SPE to give a
call notice under the Station Partners Put/Call Agreement and purchase such
stock pursuant to the Station Partners Put/Call Agreement.
(c) Partial Transfers. A Transfer of any portion of
Station Partners' Company Common Stock pursuant to the express provisions of the
demand and piggyback registration rights granted in the Registration Rights
Agreement or following an IPO pursuant to Rule 144 of the Securities Act, if
Station Partners has complied with the provisions of Section 3.3.9.
(d) Transfers after Two Years. A Transfer of all (but
not less than all) of Station Partners' Company Common Stock after the two year
anniversary of the date of this Agreement if Station Partners has complied with
the provisions of Sections 3.3.6, 3.3.7 and 3.3.8.
3.3.2 SPE or Liberty. In the case of SPE or Liberty,
individually, or their Permitted Transferees:
17
(a) Transfers to Controlled Affiliates. Transfers of all
or any portion of the shares of Company Common Stock held by it, directly or
indirectly through a Transfer of equity ownership in such Stockholder, to a
Controlled Affiliate of such Stockholder, provided there is no Change in Control
resulting therefrom.
(b) Partial Transfers. A Transfer of any portion of such
Stockholder's Company Common Stock pursuant to the express provisions of the
demand and piggyback registration rights granted in the Registration Rights
Agreement or following an IPO pursuant to Rule 144 of the Securities Act if such
Stockholder has complied with provisions of Section 3.3.9.
(c) Transfers after Two Years. A Transfer of all (but
not less than all) of such Stockholder's Company Common Stock after the two year
anniversary date of this Agreement if such Stockholder has complied with the
provisions of Sections 3.3.6, 3.3.7 and 3.3.8; provided that if SPE transfers
all or any portion of the shares of Company Common Stock held by it, then SPE
Mundo must comply with all of its obligations under the Network Group Operating
Agreement and concurrently Transfer the same proportion of its membership
interest in Network Group (or if SPE transfers all of the shares of Company
Common Stock held by it, then SPE Mundo shall concurrently Transfer all of the
shares of Class A Common Stock received upon exchange of such membership
interest in accordance with the Exchange Agreement).
(d) Corporate Reorganizations, Sales of Assets,
Spin-offs. Transfers of all but not less than all of the shares of Company
Common Stock held by it as part of a Transfer of a larger group of assets (the
"Transferred Assets"), which Transfer may be effected through a corporate
reorganization, a sale of assets, distribution of equity shares or otherwise,
(1) if the Transferred Assets constitute a business which is engaged principally
in the media, entertainment, cable or telecommunications business, and (2) the
value of the Transferred Assets (other than the shares of Company Common Stock
Transferred by such Stockholder) at the time of Transfer comprise at least 85%
of the value of the assets of the Stockholder (including the shares of Company
Common Stock Transferred by such Stockholder).
(e) Compliance with Regulatory Restrictions. Transfers
of all or any portion of the shares of Company Common Stock held by it if such
Transfer is necessary in order to comply with restrictions imposed upon the
ownership by such Stockholder (or any of its Affiliates) of the Company Common
Stock by any federal or state law, rule or regulation or any final judicial
decree or order issued by any federal or state court of competent jurisdiction
if (i) such compliance cannot be achieved by a restructuring of such
Stockholder's interest in the Company, and (ii) such Stockholder first complies
with the provisions set forth in 3.3.6 through 3.3.9 as applicable below;
provided, however, that nothing shall require such Stockholder to modify any
internal relationship or relationship with Affiliates, divest or limit its
rights with respect to any assets, agree to any restriction of its activities or
modify any transaction with other Affiliates in order to continue to hold and
vote its interest in the Company.
(f) Bona Fide Pledges. A pledge of shares of Company
Common Stock by it to a financial institution and, in connection with a pledge
of the shares of Company Common Stock by SPE or Liberty, the assignment or
transfer of the associated call rights to such financial institution, in a bona
fide transaction, provided, that (i) no such pledgee shall be permitted to
foreclose on such pledge before the second anniversary of the date hereof or to
exercise any voting rights with respect to the Company Common Stock, and (ii)
any pledgee shall agree to provide ten
18
days prior written notice to each Stockholder and the Company of its intent to
foreclose on the Company Common Stock.
3.3.3 Council Tree. In the case of Council Tree and its
Permitted Transferees, a Transfer (either directly or indirectly through a
Transfer by a Council Tree Entity of all or any portion of its membership
interests in Station Partners to another Council Tree Entity) of all but not
less than all of the shares of Company Common Stock held by it to a Council Tree
Entity, provided (i) such Transfer does not require any filing with the FCC of a
long-form change of control or license transfer application under the
Communications Act, (ii) such Transfer does not, directly or indirectly, result
in any requirement that any party be required to modify any internal
relationship or relationship with any of its Affiliates, divest or limit its
rights with respect to any assets, agree to any restriction of its activities or
modify any transaction with other Affiliates in order to continue to hold its
interest in the Company and (iii) such Transfer does not result, to Council
Tree's knowledge, in any increase in alien ownership of the Company Common Stock
of the Company from the amount represented in the Contribution Agreement.
3.3.4 Bastion and BCF.
(a) In the case of Bastion, BCF and their Permitted
Transferees, a Transfer of all or any portion of the membership interests of
Station Partners held by it to a Bastion Controlled Affiliate, provided (i) such
Transfer does not require any filing with the FCC of a long-form change of
control or license transfer application under the Communications Act, (ii) such
Transfer does not, directly or indirectly, result in any requirement that any
party be required to modify any internal relationship or relationship with any
of its Affiliates, divest or limit its rights with respect to any assets, agree
to any restriction of its activities or modify any transaction with other
Affiliates in order to continue to hold its interest in the Company and (iii)
such Transfer does not result, to Bastion's knowledge, in any increase in alien
ownership of the Company Common Stock of the Company from the amount represented
in the Contribution Agreement.
(b) Transfers after Four Years. If the put or call under
the Station Partners Put/Call Agreement has not been exercised on or prior to
August 12, 2005, Bastion or BCF may sell its membership interest in Station
Partners to a third party approved by each of Liberty and SPE. Further, each of
Council Tree, BV Capital, Liberty and SPE agree to use its commercially
reasonable efforts to identify a mutually acceptable purchaser of Bastion's
membership interests in Station Partners and to cooperate with Bastion and BCF
in its attempts to effect such Transfer (which covenant shall not obligate any
of Liberty, SPE, Council Tree or BV Capital to incur any costs in furtherance
hereof or provide any consent or approval hereunder).
3.3.5 BV Capital. In the case of BV Capital and its Permitted
Transferees:
(a) Put/Call Agreement. A Transfer of all but not less
than all of the shares of Company Common Stock held by it effected pursuant to
the express provisions of the BV Capital Put/Call Agreement.
(b) Transfers to a BV Capital Controlled Affiliate. A
Transfer of all or any portion of the shares of Company Common Stock held by it
to a BV Capital Controlled Affiliate, provided (i) such Transfer does not
require any filing with the FCC of a long-form change of control or license
transfer application under the Communications Act, (ii) such Transfer does not,
directly or indirectly, result in any requirement that any party be required to
modify any internal relationship or relationship with any of its Affiliates,
divest or limit its rights with respect to any
19
assets, agree to any restriction of its activities or modify any transaction
with other Affiliates in order to continue to hold its interest in the Company
and (iii) such Transfer does not result, to BV Capital's knowledge, in any
increase in alien ownership of the Company Common Stock of the Company from the
amount represented in the Contribution Agreement.
(c) Bona Fide Pledges, Etc. (i) A pledge or, subject to
the approval of SPE and Liberty (which approval shall not be withheld or
delayed, other than for a reasonable belief, after consultation with legal
counsel, that the proposed financing transaction would unduly delay or
jeopardize consummation of the Transactions (as defined in the Contribution
Agreement)), a substantially similar financing transaction or other Encumbrance
(as defined in the Contribution Agreement) of BV Capital's or a BV Capital
Controlled Affiliate's (excluding Bastion with respect to Station Partners
Company Common Stock) Company Common Stock (subject to reasonable and customary
terms to be negotiated in good faith with the source of such financing including
reasonable and customary restrictions against transfers in connection with
foreclosure, physical settlement of any prepaid forward transaction, or any
similar transaction needed to ensure compliance with FCC regulations); and (ii)
a pledge of BV Capital's or a BV Capital Controlled Affiliate's interest in the
BV Capital Put/Call Agreement or other transaction pursuant to the first
sentence of Section 6(d) of the BV Capital Put/Call Agreement.
(d) Partial or Full Transfers. A Transfer of all or any
portion of BV Capital's Company Common Stock effected after the earlier of an
IPO and the two-year anniversary of the date of this Agreement if BV Capital has
complied with the provisions of Section 3.3.9. Notwithstanding the foregoing, to
the extent an Early Liberty Put (as defined in the BV Capital Put/Call
Agreement) has been consummated in accordance with the BV Capital Put/Call
Agreement, BV Capital shall not Transfer less than all of BV Capital's Company
Common Stock unless the BV Capital Put/Call Agreement has been terminated.
3.3.6 Right of First Offer -Complete Transfers. Prior to
effecting a Transfer pursuant to the provisions of Sections 3.3.1(d) or
3.3.2(c), the Primary Stockholder intending to effect such Transfer must meet
the following conditions: (i) all shares held by it are sold in the same
transaction to a single purchaser, (ii) such shares must be sold to a third
party other than a Primary Stockholder (subject to the rights of Stockholders
under Section 3.3.8 below), (iii) such shares must be sold in a bona fide
transaction and (iv) the selling Primary Stockholder must comply with the terms
of Section 3.3.8.
The Primary Stockholder intending to effect such
Transfer (the "Transferring Stockholder") shall deliver written notice thereof
(a "First Offer Notice") to each other Primary Stockholder (each, an "Offeree
Stockholder") setting forth the number of shares of Company Common Stock to be
sold and the purchase price proposed by the Transferring Stockholder and any
other terms of the transaction (collectively, the "Proposed Price"). Upon
receipt of the First Offer Notice, the other Primary Stockholders shall have the
right to purchase (subject to necessary regulatory approvals) such Company
Common Stock at the Proposed Price. For a period of thirty (30) days following
receipt by each Offeree Stockholder of a First Offer Notice (the "First Offer
Period"), each Offeree Stockholder may elect, by the delivery of written notice
of such election to each other Primary Stockholder (the "First Offer Election
Notice") within such First Offer Period, to purchase such shares of Company
Common Stock at a price equal to the Proposed Price. If any Offeree Stockholder
duly and timely delivers a First Offer Election Notice to each other Primary
Stockholder in respect of any shares of Company Common Stock
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during the First Offer Period, then the Transferring Stockholder shall be
obligated to sell such shares to the Offeree Stockholder, and the Offeree
Stockholder shall be obligated to purchase such shares of Company Common Stock
from the Transferring Stockholder, free and clear of all liens (other than
obligations assumed pursuant to this Agreement). Each other Offeree Stockholder
shall have an additional five (5) days from receipt of the First Offer Election
Notice to also deliver a First Offer Election Notice to participate in such
purchase. If more than one Offeree Stockholder delivers a First Offer Election
Notice, each such Offeree Stockholder shall be entitled to purchase its pro rata
portion of the shares of Company Common Stock offered (based upon the number of
shares of Company Common Stock then held by the Offeree Stockholders electing to
participate in such sale). The purchase of any shares of Company Common Stock by
any Offeree Stockholder shall be consummated on or before the sixtieth (60th)
day after the First Offer Notice is delivered by the Transferring Stockholder or
if regulatory approvals are required, then the earlier of (i) 15 days after the
receipt of such regulatory approvals or the date after such party has abandoned
good faith attempts to obtain regulatory approvals and (ii) six months from such
First Offer Notice. If none of the Offeree Stockholders duly and timely delivers
a First Offer Election Notice, or if the Offeree Stockholders electing to
purchase fail to close such purchase as required, then the Transferring
Stockholder shall have the right to sell such shares of Company Common Stock to
a third party on terms no less favorable than those provided in the First Offer
Notice within 30 days from the date a First Offer Election Notice was due or
from the expected date of the closing, or if regulatory approvals are required,
then the earlier of (i) 15 days after the receipt of such regulatory approvals
or the date after such party has abandoned good faith attempts to obtain
regulatory approvals and (ii) six months from the first date the Transferring
Stockholder has the right to sell such shares. The Offeree Stockholder's
ownership of the Company Common Stock shall comply with restrictions imposed
upon ownership by such Stockholder (or any of its Affiliates or Ultimate Parent
Entity) of the Company Common Stock by any federal or state law, rule or
regulation or any final judicial decree or order issued by any federal or state
court of competent jurisdiction.
3.3.7 Drag Along Rights. (a) After the second anniversary of
the Closing, if any two Primary Stockholders desire to sell all of the Company
Common Stock for a price per share reflecting a valuation of the Company on a
Fully Diluted basis of not less than $2.178 billion (the "Selling Primary
Stockholders"), such Selling Primary Stockholders may deliver a written notice
(the "Drag Along Notice") of the bona fide transaction setting forth the price
and any other terms of the transaction to all other Stockholders. Upon receipt
of the Drag Along Notice, the other Stockholders, together with the Selling
Primary Stockholders delivering such Drag Along Notice, shall be obligated to
sell their Company Common Stock at the price and on the terms contained in such
Drag Along Notice.
(b) The Selling Primary Stockholders shall deliver the
Drag Along Notice to each other Stockholder at least 30 days prior to the
scheduled closing of such sale. The Drag Along Notice shall: (i) identify the
"Buyer(s)"; (ii) state the purchase price to be paid; and (iii) summarize all
material terms and conditions of the offer and all other transactions and
agreements directly or indirectly conditioned upon or otherwise related to the
sale of all of the Company Common Stock thereunder. Each other Stockholder shall
effect its sale of all of its Company Common Stock by delivering to the Selling
Primary Stockholders on or before the date scheduled for such sale, a stock
certificate or certificates, which represent all of the Company Common Stock of
such Stockholder, together with a limited power-of-attorney authorizing the
Selling Primary Stockholders to sell or otherwise dispose of such shares
pursuant to the terms of the Drag Along Notice. Such certificate or certificates
that each other Stockholder delivers to the Selling Primary
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Stockholders shall be delivered to the Buyer(s) in consummation of the sale of
all of the Company Common Stock pursuant to the terms and conditions specified
in the Drag Along Notice, and the Selling Primary Stockholders shall, or shall
cause the Buyer(s) to, concurrently therewith remit to each other Stockholder
the purchase price to which each other Stockholder is entitled by reason of its
participation in such sale, based on the Company Common Stock delivered to the
Buyer(s). Each other Stockholder shall execute an agreement, in form and
substance acceptable to the Selling Primary Stockholders, to be bound by and
subject to the same representations, warranties and covenants, terms and
conditions in the same form and substantially similar to that contained in any
agreements executed by the Selling Primary Stockholders in connection with the
sale of all the Company Common Stock to the Buyer(s) (other than such
representations, warranties and covenants, terms and conditions which are unique
to each of the Selling Primary Stockholders and other Stockholders); provided,
however, no Stockholder will be required to make any indemnity in an amount in
excess of the net proceeds received by such Stockholder for any Company Common
Stock sold by such Stockholder pursuant to this Section 3.3.7.
3.3.8 Tag Along Rights.
(a) After the second anniversary of the Closing, if any
two Primary Stockholders desire to sell all of their Company Common Stock in the
same transaction (the "Selling Stockholders"), such Selling Stockholders must
deliver a written notice of the bona fide transaction (a "Sale Notice") setting
forth the price and any other terms of the transaction to all other
Stockholders, accompanied by a certificate of the Selling Stockholders
certifying the accuracy of the information in the Sale Notice.
(b) Each Stockholder shall have the right to sell or
include in the sale, that percentage of the number of shares of Company Common
Stock to be sold to the third party equal to the ratio (expressed as a
percentage) of (1) the number of shares of Common Stock owned by the Stockholder
(calculated on a Fully Diluted basis), as compared with (2) the aggregate number
of shares of Company Common Stock outstanding (calculated on a Fully Diluted
basis).
(c) Each other Stockholder who elects to sell pursuant
to the terms of the Sale Notice (a "Participating Stockholder") shall effect its
participation in the sale by delivering to the Selling Stockholders (or such
other Person as may be designated by the Selling Stockholders) within sixty (60)
days of receipt of the Sale Notice, a stock certificate or certificates which
represent the Company Common Stock which such Participating Stockholder has
determined to sell in accordance with this Section 3.3.8, together with a
limited power-of-attorney authorizing the Selling Stockholders to sell or
otherwise dispose of such shares pursuant to the terms of the Sale Notice. Such
certificate or certificates that the Participating Stockholder delivers to the
Selling Stockholders shall be delivered to such buyer in consummation of the
sale of the Company Common Stock pursuant to the terms and conditions specified
in the Sale Notice, and the Selling Stockholder shall, or shall cause the buyer
to, concurrently therewith remit to such Participating Stockholder that purchase
price to which the Participating Stockholder is entitled by reason of its
participation in such sale, based on the Company Common Stock delivered to the
buyer. The Participating Stockholder shall execute an agreement, in form and
substance acceptable to the Selling Stockholders, to be bound by and subject to
the same representations, warranties and covenants, terms and conditions in the
same form and substantially similar to that contained in any agreements executed
by the Selling Stockholders in connection with the sale of the Selling
Stockholders' Company Common Stock to the buyer(s) (other than such
representations, warranties and
22
covenants, terms and conditions which are unique to the Selling Stockholders));
provided, however, no Participating Stockholder will be required to make any
indemnity in an amount in excess of the net proceeds received by such
Participating Stockholder for any Company Common Stock sold by such
Participating Stockholder pursuant to this Section 3.3.8.
3.3.9 Right of First Offer - Certain Other Transfers,
Including Partial Transfers. Prior to effecting a Transfer pursuant to the
provisions of Sections 3.3.1(c), 3.3.2(b), 3.3.4(b) or 3.3.5(d), the Stockholder
intending to effect such Transfer (the "Selling Partial Stockholder") must meet
the following conditions: (i) such shares must be sold in a bona fide
transaction and (ii) the Selling Partial Stockholder must comply with the terms
of this Section 3.3.9.
The Selling Partial Stockholder shall deliver written notice thereof (a
"First Offer Partial Notice") to each of the other Stockholders (each, a
"Partial Offeree Stockholder") setting forth the number of shares of Company
Common Stock to be sold and the purchase price proposed by the Selling Partial
Stockholder and any other terms of the transaction (collectively, the "Initial
Proposed Price"). Upon receipt of the First Offer Partial Notice, the other
Stockholders shall have the right to purchase such Company Common Stock at the
Initial Proposed Price. For a period of two business days following receipt by
each Partial Offeree Stockholder of a First Offer Partial Notice (the "Partial
First Offer Period"), each Partial Offeree Stockholder may elect, by the
delivery of written notice of such election to each other Stockholder (the
"First Offer Partial Election Notice") within such Partial First Offer Period,
to purchase such shares of Company Common Stock at a price equal to the Initial
Proposed Price. If any Partial Offeree Stockholder duly and timely delivers a
First Offer Partial Election Notice to each other Stockholder in respect of any
shares of Company Common Stock during the Partial First Offer Period, then the
Selling Partial Stockholder shall be obligated to sell such shares to the
Partial Offeree Stockholder, and the Partial Offeree Stockholder shall be
obligated to purchase such shares of Company Common Stock from the Selling
Partial Stockholder, free and clear of all liens (other than obligations assumed
pursuant to this Agreement). If more than one Partial Offeree Stockholder
delivers a First Offer Partial Election Notice during the Partial First Offer
Period, each such Partial Offeree Stockholder shall be entitled to purchase its
pro rata portion of the shares of Company Common Stock offered (based upon the
number of shares of Company Common Stock then held by the Partial Offeree
Stockholders electing to participate in such sale). The purchase of any shares
of Company Common Stock by any Partial Offeree Stockholder shall be consummated
on or before the fifth (5th) business day after the First Offer Partial Notice
is delivered by the Selling Partial Stockholder or if regulatory approvals are
required, then the earlier of (i) three (3) business days after the receipt of
such regulatory approvals or the date after such party has abandoned good faith
attempts to obtain regulatory approvals and (ii) six (6) months from such
notice; provided, however, that the Selling Partial Stockholder shall not be
obligated to sell the Company Common Stock to any Partial Offeree Stockholder if
the regulatory approvals for such sale are anticipated to take longer than the
regulatory approvals required for the sale to the Selling Partial Stockholder's
intended third party purchaser. If none of the Partial Offeree Stockholders duly
and timely delivers a First Offer Partial Election Notice, or if the Partial
Offeree Stockholders electing to purchase fail to close such purchase as
required, or if the Selling Partial Stockholder is not obligated to sell to a
Partial Offeree Stockholder pursuant to the proviso in the prior sentence, then
the Selling Partial Stockholder shall have the right to sell such shares of
Company Common Stock to a third party on terms no less favorable than those
provided in the First Offer Partial Notice within 30 days from the date a First
Offer Partial Election Notice was due or from the expected date of the closing,
or if regulatory approvals are required, then the earlier of (i) 15 days after
the receipt of such regulatory approvals
23
or the date after such party has abandoned good faith attempts to obtain
regulatory approvals and (ii) six months from the first date the Selling Partial
Stockholder has the right to sell such shares. Notwithstanding anything to the
contrary contained in this Section 3.3.9, if the Selling Partial Stockholder
intends, pursuant to the First Offer Partial Notice, to sell the Company Common
Stock in the public trading markets (after the Company's IPO), and if none of
the Partial Offeree Stockholders duly and timely delivers a First Offer Partial
Election Notice, or if the Partial Offeree Stockholders electing to purchase
fail to close such purchase as required, or if the Selling Partial Stockholder
is not obligated to sell to a Partial Offeree Stockholder pursuant to the
proviso in the sentence before the prior sentence, the Selling Partial
Stockholder may sell the Company Common Stock to a third party at a price that
is no less favorable than the then current closing sales price, even if it is
less favorable to the Selling Partial Stockholder than the price provided in the
First Offer Partial Notice. The Partial Offeree Stockholder's ownership of the
Company Common Stock shall comply with restrictions imposed upon ownership by
such Stockholder (or any of its Affiliates or Ultimate Parent Entity) of the
Company Common Stock by any federal or state law, rule or regulation or any
final judicial decree or order issued by any federal or state court of competent
jurisdiction.
ARTICLE 4
CAPITAL CALLS
4.1 Mandatory Capital Calls.
(a) Prior to the consummation of an IPO, the chief executive officer of
the Company (or if none, the most senior operating officer in place) or a
majority of the Board shall have the right to call (each, a "Mandatory Capital
Call") the Stockholders to contribute and the Stockholders shall be obligated to
contribute to the capital of the Company for the purpose of providing for the
operating needs of the Company pursuant to the approved Business Plan and Budget
and for the purpose of acquiring stations; provided, that (i) Mandatory Capital
Calls shall be called from all Stockholders simultaneously, (ii) each
Stockholder shall contribute an amount equal to 86.3711% of the Mandatory
Capital Call multiplied by its Proportionate Share, (iii) no Stockholder shall
be required to contribute pursuant to a Mandatory Capital Call in excess of the
Aggregate Maximum Contribution Amount (as defined below), (iv) notice of a
Mandatory Capital Call must be delivered to the Stockholders at least 60 days
prior to the date of contribution and (v) a Special Mandatory Capital Call (as
defined below) shall not be deemed to be a Mandatory Capital Call. To the extent
Telemundo Sub is required to make any Mandatory Capital Calls under the Network
Group Operating Agreement, the Company shall fund such Mandatory Capital Calls
with the first dollars received from any Stockholders pursuant to this Section
4.1(a) until such requirements are fulfilled.
(b) Prior to the consummation of an IPO and upon the unanimous approval
of the Stockholders, the chief executive officer of the Company (or if none, the
most senior operating officer in place) or a majority of the Board shall call
(each, a "Special Mandatory Capital Call") the Stockholders to contribute and
the Stockholders shall be obligated to contribute to the capital of the Company
the applicable amount so approved by the Stockholders; provided, that (i)
Special Mandatory Capital Calls shall be called from all Stockholders
simultaneously, (ii) each Stockholder shall contribute an amount equal to
86.3711% of the Special Mandatory Capital Call multiplied by its Proportionate
Share, (iii) notice of a Special Mandatory Capital Call must be delivered to the
Stockholders at least 60 days prior to the date of contribution, (iv) Special
Mandatory Capital Calls are not subject to the Total Maximum Contribution Amount
(as defined below) and (v) a Mandatory
24
Capital Call shall not be deemed to be a Special Mandatory Capital Call. To the
extent Telemundo Sub is required to make any Special Mandatory Capital Calls
under the Network Group Operating Agreement, the Company shall fund such Special
Mandatory Capital Calls with the first dollars received from any Stockholders
pursuant to this Section 4.1(b) until such requirements are fulfilled.
4.2 Aggregate Maximum Contribution Amount. As to each Stockholder, the
"Aggregate Maximum Contribution Amount" shall mean each Stockholder's
Proportionate Share of an amount equal to the product of 86.3711% (the
"Contribution Percentage") and $65 million (the "Total Maximum Contribution
Amount"); provided, however, upon an exchange by SPE Mundo of all of its Network
Group Class B Membership Interests under the Network Group Operating Agreement
into Class A Common Stock, the Aggregate Maximum Contribution Amount shall equal
each Stockholder's Proportionate Share of the Total Maximum Contribution Amount.
Any partial exchange by SPE Mundo of a part of its Network Group Class B
Membership Interests shall require an appropriate adjustment to the Contribution
Percentage.
If any Stockholder fails to contribute its allocable portion of a
Mandatory Capital Call or a Special Mandatory Capital Call or, after written
notice and an opportunity to cure (which opportunity to cure shall be set forth
in such notice and shall provide a cure period of not less than 30 days from the
receipt of notice) then upon the Transfer of substantially all of such
Stockholder's Company Common Stock, either (i) if such Transfer is pursuant to
the applicable Put/Call Agreement, the Pay Out Amount (as defined in the Station
Partners Put/Call Agreement or the BV Capital Put/Call Agreement, as applicable)
payable upon exercise of the put or call pursuant to the Station Partners
Put/Call Agreement or the BV Capital Put/Call Agreement, as applicable, shall be
adjusted as provided in such agreement or (ii) otherwise, such Stockholder shall
concurrently with such Transfer pay the Dilution Amount (as defined below) in
accordance with Section 4.5.
4.3 Discretionary Capital Call. If the chief executive officer of the
Company (or if none, the most senior operating officer in place) or a majority
of the Board determines that the Company is in need of funds in excess of the
Aggregate Maximum Contribution Amount and has not obtained the necessary
approval for a Special Mandatory Capital Call, then either the chief executive
officer or the Board may make a capital call (a "Discretionary Capital Call") on
not less than sixty (60) days written notice to each Stockholder. Each
Stockholder shall have the right to decline to meet such call. Whether or not
all Stockholders contribute their Pro Rata portion of the Discretionary Capital
Call or less than all Stockholders elect to make a contribution (a
"Discretionary Capital Contribution"), then the contributions made shall be
considered a loan to the Company, bearing interest at an annual rate of 2.0 %
over the Prime Rate.
4.4 Substitute Contributor. Bastion or BCF shall be entitled to
designate BV Capital or another Bastion Controlled Affiliate to satisfy
Bastion's or BCF's obligations in connection with Mandatory Capital Calls and
Special Mandatory Capital Calls (a "Substitute Capital Call") subject to the
adjustment of the Pay Out Amount pursuant to the Station Partners Put/Call
Agreement or the BV Capital Put/Call Agreement, as applicable, and the
adjustment of the Payment Amount pursuant to Section 4.5 below.
4.5 Make-Well. (a) Notwithstanding anything to the contrary contained
herein, in the event any party Transfers substantially all of its Company Common
Stock other than through the provisions of the Station Partners Put/Call
Agreement or the BV Capital Put/Call Agreement, and such party, including, in
the case of SPE, SPE Mundo, failed to make one or more Mandatory
25
Capital Calls or Special Mandatory Capital Calls pursuant to this Agreement, or,
in the case of SPE Mundo, the Network Group Operating Agreement (the "Capital
Call Defaults"), then such Stockholder shall be required to pay a portion of the
consideration (the "Payment Amount") to be received by such party in connection
with such Transfer in accordance with subsection (b) below concurrently with the
consummation of the Transfer. The amount required to be paid shall be an amount
(the "Dilution Amount") equal to (x) the aggregate amount of all Capital Call
Defaults (the "Capital Call Default Amount"), plus (y) an amount that would
yield the Rate of Return (as defined in the applicable Put/Call Agreement)
represented by the Payment Amount on the applicable Capital Call Default Amount
from the date or dates of the Capital Call Default through the date the Payment
Amount is paid, plus (z) if the Capital Call Default arises from a failure by
Council Tree or its assigns to make a capital contribution to Station Partners
in order to fund a Mandatory Capital Call or a Special Mandatory Capital Call,
by Liberty or its assigns to fund a Mandatory Capital Call or a Special
Mandatory Capital Call or by SPE or SPE Mundo or its assigns to fund a Mandatory
Capital Call or a Special Mandatory Capital Call, then an amount equal to 50% of
the aggregate of the sums referred to in clauses (x) and (y) above.
(b) Any Dilution Amount shall be paid in cash to the other Stockholders
in proportion to their shares of Company Common Stock (assuming the exchange of
securities exchangeable into Company Common Stock); provided that any Dilution
Amount resulting from Bastion's or BCF's failure to make a Mandatory Capital
Call or a Special Mandatory Capital Call that was contributed as a Substitute
Capital Call by BV Capital or another Bastion Controlled Affiliate shall be paid
solely to BV Capital or such other Bastion Controlled Affiliate.
ARTICLE 5
CORPORATE OPPORTUNITIES
The Stockholders acknowledge and agree that the Company is the primary
vehicle for the pursuit of corporate opportunities relating to the ownership and
operation of television broadcast stations ("Station Opportunities"). As a
result, with respect to each Stockholder, for so long as such Stockholder is a
direct or indirect holder of Company Common Stock and with respect to Xxxxx
Xxxxxxx, for so long as Xxxxx Xxxxxxx is an Affiliate of Council Tree and
Council Tree is a direct or indirect holder of Company Common Stock, each
Stockholder and Xxxxx Xxxxxxx, Chief Executive Officer of Council Tree, shall be
required to bring Station Opportunities to the attention of the Company for its
consideration, provided that (i) to the extent the Company declines to take
advantage of a Station Opportunity, such Stockholder is free to take advantage
of such Station Opportunity in a bona fide transaction on the same (or less
favorable) price, terms and conditions as originally presented to the Company,
(ii) Station Opportunities shall not be deemed to include opportunities to
acquire television stations serving Designated Market Areas ranking below 30 by
number of Hispanic Television Households (as ranked by Xxxxxxx Media Research,
Inc.) or the current opportunity held by Council Tree (or a Council Tree
Affiliate) with respect to WPHA-TV, Atlantic City, Philadelphia, provided that
opportunities to acquire three (3) or more television broadcast stations (in one
transaction or a series of related transactions) shall be Station Opportunities
regardless of ranking and (iii) in no event shall this Article 5 be deemed to
restrict the activities of any of Council Tree's or Bastion's or BV Capital's
investors or such investors' Affiliates, provided that the pursuit of a Station
Opportunity is not being made by a Council Tree Entity or Bastion Controlled
Affiliate or a BV Capital Controlled Affiliate, respectively.
26
ARTICLE 6
IPO
If the Company has not consummated an IPO, any two Primary Stockholders
shall have the right, by written notice to the Company, to cause the Company,
and the Company hereby agrees, to use its best efforts to consummate a
Qualifying IPO as soon as reasonably practicable after such notice.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Mutual Representations and Warranties. Each party hereby represents
and warrants to the other parties as follows:
7.1.1 The party has been duly formed and is validly existing
and in good standing under the laws of the jurisdiction of its organization.
7.1.2 The party has the right, power, and legal capacity and
authority to enter into and perform its obligations under this Agreement. The
party's execution and delivery of this Agreement and the performance and
consummation of these transactions have been duly authorized by all necessary
corporate, partnership or limited liability company action, including any
necessary approval by its board of directors or other governing body, and no
other corporate, partnership or limited liability company proceedings is
necessary on the part of the party for the execution and delivery of this
Agreement or for the performance of its obligations provided for herein.
7.1.3 The Agreement has been duly executed and delivered by
the party, and, assuming this Agreement is a binding obligation of the other
parties to it, this Agreement constitutes a valid and binding obligation of the
party enforceable against it in accordance with its terms.
7.1.4 The consummation of the transactions contemplated by
this Agreement will not violate, conflict with or result in a breach of the
party's constitutive documents, or any instrument or agreement to which the
party is a party or by which the party is bound, or any provision of laws and
regulations applicable to the party.
7.1.5 Each Stockholder owns the Holder's Common Stock held by
it free and clear of all liens, security interests, encumbrances, easements,
judgments or imperfections of title of any nature whatsoever. Except for this
Agreement, the Liberty Proxy and the Station Partners LLC Agreement, there are
no voting trusts, proxies, or any other agreements, restrictions or
understandings with respect to the voting of the capital stock of the Company
binding on such Stockholder.
7.1.6 Council Tree represents and warrants that to its
knowledge the representations made by it to the FCC as part of the application
for Consent to Transfer Control filed with the FCC on August 8, 2000 in
connection with the transactions contemplated by the
27
Contribution Agreement (the "Transfer of Control Application") are true and
correct in all material respects as of the date hereof. Council Tree agrees that
if, subsequent to the date hereof, Council Tree becomes aware that the aggregate
alien ownership of the Company attributable to Council Tree is at any time
greater than 1.5%, it will restructure its investment in Station Partners or
take any other action necessary so that such excess alien ownership interest
will not be attributable to the Company consistent with the requirements of the
Communications Act and FCC Regulations, and Liberty, SPE, Bastion, BCF and BV
Capital agree to cooperate with all reasonable requests of Council Tree in
connection therewith.
7.1.7 Each of BV Capital, BCF and Bastion represents and
warrants that to its knowledge the representations made by it to the FCC as part
of the Transfer of Control Application to the Company are true and correct in
all material respects as of the date hereof. Each of BV Capital, BCF and Bastion
agrees that if, subsequent to the date hereof, the aggregate alien ownership of
BV Capital, BCF and Bastion and attributable to the Company is greater than
0.54%, each of BV Capital, BCF and Bastion will restructure their investments in
Station Partners or the Company, as applicable, or take any other action
necessary so that such excess alien interest will not be attributable to the
Company consistent with the requirements of the Communications Act and FCC
Regulations, and Liberty, SPE and Council Tree agree to cooperate with all
reasonable requests of BV Capital, BCF and Bastion in connection therewith.
7.1.8 Each of Liberty and SPE represents and warrants that to
its knowledge the representations made by it to the FCC as part of the Transfer
of Control Application to the Company are true and correct in all material
respects as of the date hereof. Liberty and SPE agree that if, subsequent to the
Closing Date, they become aware that aliens own a greater percentage interest in
the Company than 25% solely as a result of their investment in the Company and
assuming that the representations and warranties of Council Tree, Bastion, BCF
and BV Capital in Sections 7.1.6 and 7.1.7 are true and accurate, they will
restructure their investment in the Company or take any other action necessary
so that such alien interest in excess of 25% will not be attributable to the
Company consistent with the requirements of the Communications Act and FCC
Regulations, and Council Tree, Bastion, BCF and BV Capital will cooperate with
all reasonable requests of Liberty and SPE in connection therewith.
ARTICLE 8
COVENANTS
8.1 Mutual Covenants. Each party hereby covenants to the other parties
as follows:
8.1.1 The party agrees that it will not Transfer any of its
shares of Company Common Stock, and in the case of SPE Mundo, the Class B
Membership Interests, and, in the case of Council Tree and Bastion or BCF, any
of its membership interest in Station Partners, if such action would (A) cause
the Company to be in non-compliance with FCC Regulations or (B) result in a
Change in Control or Event of Default (each as defined in the Senior Credit
Facility) or a Change of Control or Event of Default (each as defined in the
Indenture), other than as consented to or waived by the lenders party to the
Credit Facility or the bondholders under the Indenture, respectively; provided,
however, that no such consents or waivers shall require the Company to make any
payment to such lenders or bondholders (unless the Company is reimbursed by the
party requesting such waiver or consent) or make any modifications to the Senior
Credit Facility or
28
Indenture (other than changes to the definition of Change in Control or Change
of Control therein necessitated by the Transfer) which the Board determines, in
good faith, may be adverse to the Company. The Company agrees to cooperate with
any party requesting a consent or waiver under this Section 8.1.1 and provide
reasonable assistance (at the expense of the requesting party) in obtaining such
consent or waiver.
8.1.2 The Company shall not permit any Subsidiary of the
Company to issue any options, warrants or rights to purchase any of the
securities of such Subsidiary to any Person other than the Company or a wholly
owned Subsidiary of the Company.
8.2 Station Partners Covenants. Station Partners hereby covenants to
the other Parties as follows:
8.2.1 Station Partners has delivered to each of the other
Parties hereto a true and complete copy of the Station Partners LLC Agreement.
Station Partners, Council Tree, Bastion and their respective Permitted
Transferees shall not effect any amendment, modification or termination of the
Station Partners LLC Agreement in a manner that would result in Council Tree not
having the sole power (i) to direct the voting of all Holder's Common Stock held
by Station Partners and (ii) to direct Station Partners' consent or the
withholding of such consent with respect to any Major Decision or any other
action that requires the unanimous approval of the Stockholders hereunder;
provided, however, that to the extent that the Station Partners LLC Agreement
provides as of the date hereof for any limitations on the powers of Council Tree
set forth in clauses (i) and (ii), there shall be no obligation on the part of
Station Partners, Council Tree, Bastion, BCF and their respective Permitted
Transferees to amend the Station Partners LLC Agreement to remove such
limitations.
8.3 Council Tree Covenants. For so long as Council Tree is a direct or
indirect stockholder of the Company, the Council Tree Affiliate will not sell
its interests and opportunities with respect to WPHA-TV, Atlantic City,
Philadelphia unless the Council Tree Affiliate has complied with the following
paragraph:
8.3.1 If Council Tree or a Council Tree Entity resolves to
sell the interest and opportunities with respect to WPHA-TV, Atlantic City,
Philadelphia, Council Tree must deliver to the Company a written notice of such
intent, and shall set forth the material terms pursuant to which Council Tree or
such Council Tree Entity would be prepared to make such sale. The Company shall
have a period of 60 days after is has received such notice to accept the terms
set forth therein and to purchase such interests. If the Company does not accept
the terms within such period, or fails to purchase such interest after 60 days
(or, in the event regulatory approvals are necessary, the earlier of (a) 15 days
after receipt of such regulatory approvals or the date after which the Company
has abandoned good faith attempts to obtain such regulatory approvals and (b)
six months from such notice), then Council Tree or a Council Tree Entity shall
be entitled to enter into an agreement with a third party on terms that,
individually and collectively, are the same or more favorable to Council Tree or
a Council Tree Entity than those offered to the Company; provided, however,
that: (i) Council Tree or a Council Tree Entity must sign an agreement with such
third party on such terms within 180 days of the Company's failure to accept,
and the proposed purchase or acquisition must be closed on such terms within 180
days of such agreement (subject to extension for FCC approval delays only), or
such potential third party sale shall once again be subject to the provisions of
this Section 8.3.1; (ii) if Council Tree or a Council Tree Entity and the third
party
29
change the proposed sale terms so that they are less favorable to Council Tree
or the Council Tree Entity than those offered to the Company, then Council Tree
must offer the Company the opportunity to match such terms pursuant to the
procedure set forth above; and (iii) if the proposed transaction with the third
party is not concluded, any other potential sales will be subject to the
provisions of this Section 8.3.1.
ARTICLE 9
MISCELLANEOUS
9.1 Term. The term of this Agreement shall be the maximum term
permitted under Delaware law (unless terminated earlier by the unanimous written
consent of the Stockholders).
9.2 Remedies. 9.2.1 Each party hereto acknowledges that money damages
would not be an adequate remedy in the event that any of the covenants or
agreements in this Agreement are not performed in accordance with its terms and
that the non-breaching party(ies) would suffer irreparable injury in such event,
and it is therefore agreed that, in addition to and without limiting any other
remedy or right it may have, the non-breaching party(ies) will have the right to
an injunction, temporary restraining order or other equitable relief in any
court of competent jurisdiction enjoining any such breach and enforcing
specifically the terms and provisions hereof.
(a) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(b) Notwithstanding any other provision of this Agreement, no
party shall have the right to terminate this Agreement in the event of a breach
of another party.
9.3 Legends.
(a) Upon original issuance thereof, and until such time as the
same is no longer required hereunder or under the applicable requirements of the
Securities Act or applicable state securities or "blue sky" laws, any
certificate issued representing any shares of Company Common Stock held by a
Stockholder or any Permitted Transferee (including all certificates issued upon
Transfer) shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
VOTING AGREEMENTS AND RESTRICTIONS ON TRANSFER SET FORTH IN A
CERTAIN STOCKHOLDERS' AGREEMENT DATED AS OF DECEMBER 15, 2000
AMONG SONY PICTURES ENTERTAINMENT INC., LIBERTY MEDIA
CORPORATION, XXXX-XXXXXXXXXX CAPITAL, LLC, COUNCIL TREE
HISPANIC BROADCASTERS II, L.L.C., BASTION CAPITAL FUND, L.P.,
BCF MEDIA, LLC, STATION PARTNERS, LLC AND TELEMUNDO
COMMUNICATIONS GROUP, INC., A COPY OF WHICH IS
30
ON FILE AT THE PRINCIPAL OFFICE OF TELEMUNDO COMMUNICATIONS
GROUP, INC."
(b) The certificates representing the shares of Company Common
Stock (including any certificate issued upon Transfer) shall also bear any
legend required under any applicable state securities or "blue sky" laws.
(c) The Company may make a notation on its records or give
instructions to any transfer agents or registrars for the Company Common Stock
in order to implement the restrictions on Transfer set forth in this Agreement.
(d) In connection with any Transfer of Company Common Stock,
the transferor shall provide the Company with such customary certificates,
opinions and other documents as the Company may reasonably request to assure
that such Transfer complies fully with applicable securities and other laws.
(e) The Company shall not incur any liability for any delay in
recognizing any Transfer of Company Common Stock if the Company in good faith
reasonably believes that such Transfer may have been or would be in violation in
any material respect of the provisions of the Securities Act, applicable state
securities or "blue sky" laws, or this Agreement.
9.4 Reimbursement of Costs. The Company will reimburse Station Partners
for its ordinary course audit and related expenses in an annual amount not to
exceed $30,000.
9.5 Notices. Any notice to be given or to be served upon the Company or
any party hereto in connection with this Agreement must be in writing (which may
include facsimile) and will be deemed to have been given (i) if personally
delivered, on the date received or refused, when delivered to the address
specified by the party to receive the notice, (ii) if sent by facsimile, once
such notice or other communication is transmitted to the facsimile number
specified below, and the appropriate written facsimile confirmation is received,
provided that such notice or other communication is promptly thereafter mailed
by United States mail, postage prepaid, or (iii) if sent by a prepaid overnight
delivery service under circumstances by which such service guarantees next
Business Day delivery, the date received or refused. Such notices will be given
to a party and to its respective counsel at the addresses specified below. Any
party may, at any time by giving five days' prior written notice to the other
Parties, designate any other address in substitution of the below-specified
address to which such notice will be given.
(a) If to Liberty, to:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxx
31
with a copy (which shall not constitute notice) to:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxx
(b) If to SPE, to:
Sony Pictures Entertainment Inc.
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxx
with a copy (which shall not constitute notice) to:
Sony Pictures Entertainment Inc.
Xxxxxx Studios, Building C, Suite 211
10202 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
(c) If to Council Tree or Station Partners, to:
Council Tree Hispanic Broadcasters II, L.L.C.
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 X. 00xx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxx
(d) If to Bastion or BCF, to:
Bastion Capital Fund, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
(e) If to BV Capital, to:
Xxxx-Xxxxxxxxxx Capital, LLC
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
(f) If to the Company, to:
Telemundo Communications Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
9.6 Complete Agreement. This Agreement constitutes the complete and
exclusive agreement among the Parties with respect to the subject matter herein
and replaces and supersedes all prior written and oral agreements or statements
by and among the Parties or any of them. No representation, statement, condition
or warranty not contained in this Agreement shall be binding
33
on the Parties or have any force or effect whatsoever. To the extent that any
provision of the Certificate of Incorporation conflicts with any provision of
this Agreement, the Certificate of Incorporation shall control.
9.7 Governing Law. THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE IN, AND TO BE PERFORMED WITHIN, SAID
STATE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF. THE
CORPORATE GOVERNANCE PROVISIONS OF THIS AGREEMENT RELATING TO THE COMPANY SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE DELAWARE
GENERAL CORPORATION LAW.
9.8 Binding Effect. Subject to the provisions of this Agreement
relating to transferability, this Agreement shall be binding upon and inure to
the benefit of the Parties, and their respective successors and assigns.
9.9 Pronouns; Statutory References. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, singular
or plural, as the context in which they are used may require, unless otherwise
expressly provided herein. Any reference to the Code, the Regulations, the Act
or other statutes or laws include all amendments, modifications, or replacements
of the specific sections and provisions concerned.
9.10 Headings. All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
9.11 Interpretation. In the event any claim is made by any party
relating to any conflict, omission or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular party
or its counsel.
9.12 References to this Agreement. Numbered or lettered articles,
sections and subsections herein contained refer to articles, sections and
subsections of this Agreement unless otherwise expressly stated.
9.13 Jurisdiction. Each party hereby consents exclusively to the
jurisdiction of the state and federal courts sitting in Los Angeles County,
California in any action on a claim arising out of, under or in connection with
this Agreement or the transactions contemplated by this Agreement. Each party
further agrees that personal jurisdiction over it may be effected by service of
process by registered or certified mail addressed as provided in this Agreement,
and that when so made shall be as if served upon it personally within the State
of California.
9.14 Severability. If any provision of this Agreement or the
application of any such provision to any Person or circumstance shall be held
invalid, the remainder of this Agreement or the application of such provision to
Persons or circumstances other than those to which it is held invalid shall not
be affected thereby.
34
9.15 Additional Documents and Acts. Each party agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be reasonably necessary or appropriate in accordance with the terms
of this Agreement to effectuate, carry out and perform all of the terms,
provisions, and conditions of this Agreement and the transactions contemplated
hereby.
9.16 Amendments. All amendments to this Agreement must be in writing
and signed by all of the Parties.
9.17 Reliance on Authority of Person Signing Agreement. If a party is
not a natural Person, neither the Company nor any party shall be required to
determine the authority of the individual signing this Agreement to make any
commitment or undertaking on behalf of such entity or to determine any fact or
circumstance bearing upon the existence of the authority of such individual.
9.18 Multiple Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party shall have received a
counterpart signed by the other party hereto.
9.19 No Third Party Beneficiary. Subject to Section 9.20 below, this
Agreement is not intended and shall not be construed to be for the benefit of
any creditors or other Persons (other than the Parties in their capacity as
such) to whom any debts, liabilities or obligations are owed by (or who
otherwise has any claim against) the Company or any of the Parties and no such
creditor or other Person shall obtain any right under any such provision, or
shall by reason of any such provision make any claim in respect of any debt,
liability or obligation, or otherwise, against the Company or the Parties.
9.20 Xxxxxxx Xxxxx International. Upon consummation of the sale
contemplated by the prepaid forward transaction with Xxxxxxx Xxxxx International
("MLI"), through its agent Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("MLPF&S"), with respect to all of the Company Common Stock owned by BV Capital
and subject to the BV Capital Put/Call Agreement pursuant to Confirmations dated
as of December 15, 2000, and the related ISDA Master Agreement, Schedules and
other related documents, if MLI (or one of its Affiliates) takes physical
settlement of all of the shares of Company Common Stock owned by BV Capital and
subject to the BV Capital Put/Call Agreement, then MLI (or such MLI Affiliate)
shall be deemed for the purposes of this Agreement, the Registration Rights
Agreement and the BV Capital Put/Call Agreement to be a BV Capital Controlled
Affiliate; provided, however, that at no time shall MLI (or such MLI Affiliate)
be subject to Article 5 of this Agreement.
35
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to
be effective as of the Effective Date.
TELEMUNDO COMMUNICATIONS GROUP, INC. COUNCIL TREE HISPANIC BROADCASTERS II, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------------------------- -------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer Title: Chief Executive Officer
and Treasurer
BASTION CAPITAL FUND, L.P.
By: Bastion Partners, L.P., Its General Manager
-------------------------------------------------
By: Bron Corp., Its Co-general Partner
-------------------------------------------
By: /s/ Xxxxxxxxx Xxxx
-------------------------------------
Xxxxxxxxx Xxxx
President
By: Xxxxxxxxxx Investments, It
Co-general Partner
-------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxxx
President
XXXX-XXXXXXXXXX CAPITAL, LLC
By: /s/ Xxxxxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Control Manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Control Manager
36
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
SONY PICTURES ENTERTAINMENT INC.
By: /s/ Xxxx Xxxx
-------------------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President and
Assistant Secretary
STATION PARTNERS, LLC
By: Council Tree Hispanic Broadcasters II, L.L.C.,
as Managing Member
-------------------------------------------------
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
BCF MEDIA, LLC
By: /s/ Xxxxxxxxx Xxxx
-------------------------------------------------
Xxxxxxxxx Xxxx, its Manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxxxxx, its Manager
With respect to Article 5 hereof,
/s/ Xxxxx Xxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxx
37
TELEMUNDO COMMUNICATIONS GROUP, INC.
STOCKHOLDERS' AGREEMENT
DATED AS OF DECEMBER 15, 2000
38
