EXHIBIT 99(a)
STOCK PURCHASE AGREEMENT
BETWEEN
UNIVISION COMMUNICATIONS INC.
AND
CLEAR CHANNEL INVESTMENTS, INC.
STOCK PURCHASE AGREEMENT (this "AGREEMENT") dated as of January 7, 2004
between Univision Communications Inc., a Delaware corporation ("COMPANY"), and
Clear Channel Investments, Inc., a Nevada corporation ("HOLDER").
WHEREAS, Holder owns 15,815,999 shares of the Class A common stock, par
value $0.01 per share (the "COMMON STOCK"), of Company as of January 7, 2004
(the "CLEAR CHANNEL-OWNED SHARES");
WHEREAS, Company and Holder are parties to a Registration Rights
Agreement (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 22, 2003;
WHEREAS, Company has entered into an Underwriting Agreement dated as of
the date hereof (the "UNDERWRITING AGREEMENT") with the underwriters named
therein (the "UNDERWRITERS") pursuant to which Company is offering to sell to
the public for cash (the "PUBLIC OFFERING") 15,815,999 shares of its Common
Stock (the closing of such offer and sale is hereinafter referred to as the
"CLOSING" and the date of such Closing is hereinafter referred to as the
"CLOSING DATE") pursuant to Company's registration statement on Form S-3 (No.
333-110981) (as amended to the date hereof, the "REGISTRATION STATEMENT") and a
prospectus supplement (together with the prospectus included in the Registration
Statement, the "PROSPECTUS") filed pursuant to Rule 424 under the Securities Act
of 1933, as amended;
WHEREAS, Company and Holder desire to make certain representations,
warranties and agreements in connection with the transactions described herein;
and
WHEREAS, on the Closing Date, Holder desires to sell to Company, and
Company desires to purchase from Holder, all of the Clear Channel-Owned Shares
(such sale and purchase being hereinafter referred to as the "PURCHASE");
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties agree:
ARTICLE I
PURCHASE AND SALE OF CLEAR CHANNEL-OWNED SHARES; CLOSING
1.1 PURCHASE AND SALE OF CLEAR CHANNEL-OWNED SHARES.
On the basis of the representations and warranties contained herein and
subject to the terms and conditions hereof, on the Closing Date, Holder agrees
to sell to Company, and Company agrees to purchase from Holder, all of the Clear
Channel-Owned Shares at a purchase price per share of $37.90 (the "PURCHASE
PRICE"), which price represents the purchase price per share to be received by
Company from the Public Offering after deducting all underwriting discounts and
commissions .
1.2 CLOSING.
(a) Subject to satisfaction or waiver of the conditions set
forth herein, the Closing of the Purchase shall take place at the
offices of O'Melveny & Xxxxx LLP at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx on the Closing Date (or at such other time
or place as shall be mutually agreed upon by the parties hereto). The
parties agree that the Closing Date will be January 12, 2004.
(b) At the Closing, Holder shall sell, assign and transfer to
Company all its right, title and interest in and to the Clear
Channel-Owned Shares free and clear of all mortgages, pledges, security
interests, liens, claims, encumbrances or equities (collectively, the
"LIENS") and deliver to the Bank of New York, as transfer agent for
Company, the Clear Channel-Owned Shares in electronic form.
(c) On the Closing Date, Company shall pay to Holder the
aggregate Purchase Price for all Clear Channel-Owned Shares by wire
transfer of immediately available funds to an account designated in
writing by Holder (the number for which account shall have been
furnished to Company at least one (1) business day prior to the Closing
Date).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF HOLDER
Holder represents and warrants to Company as follows:
2.1 POWER, AUTHORITY AND ENFORCEABILITY.
Holder has the requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Holder and the consummation by
Holder of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part Holder. This Agreement has been duly
executed and delivered by Holder and, assuming the accuracy of the
representations and warranties set forth in Article III hereof, constitutes the
legal, valid and
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binding agreement of Holder enforceable against it in accordance with its terms,
except as may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (b) equitable principles of
general applicability relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.2 GOVERNMENTAL AUTHORIZATION.
No consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the execution and delivery by Holder of this Agreement, the
performance by Holder of its obligations hereunder and the consummation by
Holder of the transactions contemplated hereby, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications which, if not
obtained, would not, individually or in the aggregate, have a material adverse
effect on the ability of Holder to perform its obligations hereunder or
consummate the transactions contemplated hereby on a timely basis.
2.3 NONCONTRAVENTION.
The execution and delivery by Holder of this Agreement, the performance
by Holder of its obligations hereunder and the consummation by Holder of the
transactions contemplated hereby will not conflict with or result in a breach or
violation of (1) any of the terms or provisions of, or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any rights to termination, amendment, acceleration or
cancellation of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Holder or any of its subsidiaries is a party or
by which Holder or any of its subsidiaries is bound or to which any of their
property or assets is subject or (2) any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over Holder or any of its subsidiaries or any of their respective
properties, except for in the case of either clause (1) or (2) such conflicts,
breaches or violations which would not prevent or delay the consummation of the
transactions contemplated by this Agreement, nor will any such action result in
any violation of the provisions of the certificate of incorporation or the
by-laws of Holder.
2.4 TITLE TO CLEAR CHANNEL-OWNED SHARES.
Holder has good and valid title to the Clear Channel-Owned Shares, free
and clear of all Liens, with full right and authority to deliver the same
hereunder. Upon payment for the Clear Channel-Owned Shares pursuant to this
Agreement, Company will acquire good and valid title thereto, free and clear of
all Liens. Holder represents that none of Clear Channel Communications, Inc. or
any of its subsidiaries (including Holder) hold any other shares of capital
stock of Company other than the Clear Channel-Owned Shares.
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2.5 INDEPENDENT INVESTIGATION.
Holder (a) has the requisite knowledge, sophistication and experience
in order to fairly evaluate a disposition of the Clear Channel-Owned Shares,
including the risks associated therewith, and (b) has adequate information and
has made its own independent investigation and evaluation to the extent it deems
necessary or appropriate concerning the business, properties, results of
operations and financial condition of Company and its subsidiaries taken as a
whole to make an informed decision regarding the sale of the Clear Channel-Owned
Shares pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants to Holder as follows:
3.1 POWER, AUTHORITY, AND ENFORCEABILITY.
Company has the requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Company and the consummation by
Company of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Company. This Agreement has been duly
executed and delivered by Company and, assuming the accuracy of the
representations and warranties set forth in Article II hereof, constitutes the
legal, valid and binding agreement of Company enforceable against Company in
accordance with its terms, except as may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, and (b)
equitable principles of general applicability relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
3.2 GOVERNMENTAL AUTHORIZATION.
No consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the execution and delivery by Company of this Agreement, the
performance by Company of its obligations hereunder and the consummation by
Company of the transactions contemplated hereby and in the Prospectus, except
such consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act of 1933, as
amended, and the rules and regulations of the Securities and Exchange Commission
thereunder (collectively, the "SECURITIES ACT"), and as may be required under
state securities or blue sky laws in connection with the Public Offering or
which, if not obtained, would not, individually or in the aggregate, have a
material adverse effect on the ability of Company to perform its obligations
hereunder or consummate the transactions contemplated hereby on a timely basis.
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3.3 NONCONTRAVENTION.
The execution and delivery by Company of this Agreement, the
performance by Company of its obligations hereunder and the consummation by
Company of the transactions contemplated hereby and in the Prospectus will not
conflict with or result in a breach or violation of (1) any of the terms or
provisions of, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights or
termination, amendment, acceleration or cancellation of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which Company or any of its subsidiaries is a party or by which Company or any
of its subsidiaries is bound or to which any of their property or assets is
subject or (2) any applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over Company or any
of its subsidiaries or any of their respective properties, except for in the
case of either clause (1) or (2) such conflicts, breaches or violations which
would not prevent or delay the consummation of the transactions contemplated by
this Agreement, nor will any such action result in any violation of the
provisions of the certificate of incorporation or the by-laws of Company.
3.4 NO DISTRIBUTION.
Company is purchasing the Clear Channel-Owned Shares from Holder for
its own account and not with a view to any distribution thereof within the
meaning of the Securities Act. Following the Closing, the Clear Channel-Owned
Shares acquired by Company from Holder shall either be cancelled or placed in
Company's treasury.
ARTICLE IV
CONDITIONS TO CLOSING
4.1 CONDITIONS TO OBLIGATIONS OF COMPANY.
The obligation of Company to purchase the Clear Channel-Owned Shares
hereunder is subject to the satisfaction or waiver on or before the Closing Date
of each of the following conditions:
(a) No action, claim, suit, hearing, complaint, demand,
injunction, litigation, judgment, arbitration, order, decree, ruling or
governmental investigation or proceeding shall be pending or threatened
by any Governmental Entity, and no such Governmental Entity shall have
issued any injunction, judgment or order, which shall remain in effect,
that would prevent the consummation of the transactions contemplated by
this Agreement. As used herein, the term "Governmental Entity" means
any agency, bureau, commission, authority, department, official,
political subdivision, tribunal or other instrumentality of any
government, whether (i) regulatory, administrative or otherwise; (ii)
federal, state or local or (iii) domestic or foreign.
(b) The Closing shall have occurred in accordance with the
terms of the Underwriting Agreement.
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(c) Holder shall have performed in all material respects all
of its obligations hereunder required to be performed by it on or
before the Closing Date.
(d) The representations and warranties (without regard to
materiality qualifiers) of Holder contained in this Agreement and in
any certificate or other writing delivered by Holder pursuant hereto
shall be true and correct in all material respects on and as of the
date hereof and on and as of the Closing Date as though made on and as
of such date.
(e) Company shall have received a certificate signed by a duly
authorized officer of Holder to the effect set forth in Section 4.1(c)
and (d) above.
4.2 CONDITIONS OF OBLIGATIONS OF HOLDER.
The obligation of Holder to sell the Clear Channel-Owned Shares
hereunder is subject to the satisfaction or waiver on or prior to the Closing
Date of each the following conditions:
(a) No action, claim, suit, hearing, complaint, demand,
injunction, litigation, judgment, arbitration, order, decree, ruling or
governmental investigation or proceeding shall be pending or threatened
by any Governmental Entity, and no such Governmental Entity shall have
issued any injunction, judgment or order, which shall remain in effect,
that would prevent the consummation of the transactions contemplated by
this Agreement.
(b) The Closing shall have occurred in accordance with the
terms of the Underwriting Agreement.
(c) Company shall have performed in all material respects all
of its obligations hereunder required to be performed by it on or
before the Closing Date.
(d) The representations and warranties (without regard to
materiality qualifiers) of Company contained in this Agreement and in
any certificate or other writing delivered by Company pursuant hereto
shall be true and correct in all material respects on and as of the
date hereof and on and as of the Closing Date as though made on and as
of such date.
(e) Holder shall have received a certificate signed by a duly
authorized officer of Company to the effect set forth in Section 4.2(c)
and (d) above.
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ARTICLE V
COVENANTS
5.1 RELINQUISHMENT OF REGISTRATION RIGHTS.
Upon consummation of the Purchase and receipt of the aggregate Purchase
Price by Holder for all Clear Channel-Owned Shares, the Registration Rights
Agreement will be deemed terminated.
5.2 LOCK-UP.
Until the Closing and except for the sale of the Clear Channel-Owned
Shares pursuant to the terms of this Agreement, Holder agrees that it shall not,
without the prior written consent of Company, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by Company, directly or through any of its
subsidiaries, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position (within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended), any other shares of Class A Common
Stock or any securities convertible into, or exercisable, or exchangeable for,
shares of Class A Common Stock, or publicly announce an intention to effect any
such transaction.
ARTICLE VI
GENERAL PROVISIONS
6.1 NOTICES.
All notices required to be given hereunder will be sufficient if in
writing, and sent by facsimile transmission and by courier service (with proof
of service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
If to Holder, to:
Clear Channel Investments, Inc.
000 X. Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Hamlet Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice), to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Will Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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If to Company, to:
Univision Communications Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx, 00000-0000
Attention: C. Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice), to:
O'Melveny & Xxxxx LLP
1999 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx, 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq. and Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
6.2 AMENDMENTS AND WAIVERS.
Any provision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement, or in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
6.3 SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
6.4 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without reference to its conflict of laws
principles.
6.5 PUBLIC ANNOUNCEMENTS.
Each party agrees that, except as may be required by applicable law,
rule or regulation, or any listing agreement with any national securities
exchange, such party will not issue any press release or make any public
statement with respect to this Agreement or the transactions contemplated hereby
without obtaining the prior written consent of the other party.
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6.6 SECTION HEADINGS.
The captions and headings appearing at the beginning of the various
sections of this Agreement are for convenience of reference only and shall not
be given any effect whatsoever in the construction or interpretation of this
Agreement.
6.7 ENFORCEMENT.
The parties agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any action instituted in any court of the United States or any
state thereof having jurisdiction over the parties and the matter, this being in
addition to any other remedy to which they are entitled at law or in equity.
6.8 SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
6.9 EXPENSES.
Each of Company and Holder shall pay its own expenses incurred in
connection with the transactions contemplated hereby.
6.10 NO INDEMNITY.
Notwithstanding anything herein or in any other agreement to the
contrary, no party to this Agreement shall have any obligation to indemnify any
other party to this Agreement in connection with any matter related to or
arising out of the Public Offering or the subject matter of this Agreement.
6.11 TERMINATION.
Notwithstanding any provision in this Agreement to the contrary, this
Agreement (other than the terms of Sections 6.9 and 6.10, which shall remain in
full force and effect) shall terminate if the Underwriting Agreement is
terminated in accordance with the terms contained therein.
6.12 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Any
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party may execute this Agreement by the delivery of a facsimile signature, which
signature shall have the same force and effect as an original signature. Any
party that delivers a facsimile signature shall promptly thereafter deliver an
originally executed signature to the other party; provided, however, that the
failure to deliver an original signature page shall not affect the validity of
any signature delivered by facsimile.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer as of the date first
written above.
UNIVISION COMMUNICATIONS INC.
By: /s/ C. Xxxxxxx Xxxxxxxxxx
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Name: C. Xxxxxxx Xxxxxxxxxx
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Title: EVP
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CLEAR CHANNEL INVESTMENTS, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
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Title: Senior Vice President - Finance
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