REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is entered
into as of October 2, 1996, by and among Univision Communications Inc., a
Delaware corporation (the "Company"), A. Xxxxxxx Xxxxxxxxx, Venevision
International, Limitied, a British Virgin Islands corporation, Grupo
Televisa, S.A., a Mexican coropration and the holders of Common Stock of the
Company named on the signature pages hereof (collectively, the "Holders", and
individually, a "Holder").
RECITALS
WHEREAS, the Holders own shares of the Company's Class P Common
Stock, Class T Common Stock, Class V Common Stock and Class A Common Stock of
the Company (the "Original Common Stock");
WHEREAS, the Original Common Stock was issued without registration
under the Securities Act, and therefore, the resale thereof by the Holders is
subject to restrictions under the Securities Act; and
WHEREAS, in connection with the Company's initial Offering of its
Class A Common Stock the Company has agreed to enter into this Agreement with
the Holders;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT
Section 1 CERTAIN DEFINITIONS. As used in this Agreement, unless
the context otherwise requires:
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with another Person.
"Business Day" means any day on which commercial banks are not
authorized or required to close in Los Angeles, California.
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"Commission" means the Securities and Exchange Commission or any
other similar or successor agency of the United States government
administering the Securities Act.
"Common Stock" means the Class A Common Stock, the Class P Common
Stock, the Class T Common Stock and the Class V Common Stock of the Company,
par value $0.01 per share.
"Xxxxxx LLC" means The Xxxxxx Family LLC and its Permitted
Transferees.
"Exchange Act" means the Securities Exchange Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Initiating Holders" means those Holders who have given a Demand
Notice pursuant to Section 2.1.
"Offering" with respect to any of the Company's securities means
the registration of such securities, whether underwritten or not, for sale to
the public.
"Ordinary S-3 Registration Statement" means a Registration
Statement on Form S-3 that includes only those items and that information
that is required to be included in Parts I and II of such Form, and does not
include any additional or extraneous items or information (e.g., a
description of the Company or the Company's business).
"Perenchio" means A. Xxxxxxx Xxxxxxxxx and his Permitted
Transferees.
"Perenchio Initiating Holders" means Holders of Perenchio
Registerable Securities who, in the aggregate, own at least a majority of
Perenchio Registrable Securities then held by all Holders of Perenchio
Registrable Securities and who have given a Demand Notice pursuant to Section
2.1.
"Perenchio Registerable Securities" means Registerable Securities
held by Perenchio, Rader and Xxxxxx LLC; provided that in the case of Xxxxxx
LLC, Perenchio Registerable Securities shall be limited to 23,828,750 shares
of Class A Common Stock (adjusted for stock splits and stock dividends).
"Permitted Transferee" means
(i) any entity all of the equity (other than directors'
qualifying shares) of which is directly or indirectly owned by the
transferor and that is not an Affiliate of any other Person;
(ii) in the case of a transferor who is an individual, (a)
such transferor's spouse and lineal descendants, (b) such transferor's
successors, personal representatives and heirs, (c) any trustee of any
trust created primarily for the benefit
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of any, some or all of such spouse and lineal descendants (but which may
include beneficiaries which are charities) or of any revocable trust
created by such transferor, (d) following the death of such transferor,
all beneficiaries under either such trust, (e) the transferor, in the
case of a transfer from any Permitted Transferee back to its transferor
and (f) any entity all of the equity of which is directly or indirectly
owned by any of the foregoing which is not an Affiliate of any other
Person;
(iii) (a) in the case of the Class P Common Stock, A. Xxxxxxx
Xxxxxxxxx, (b) in the case of the Class T Common Stock, Grupo Televisa
S.A., and (c) in the case of Class V Common Stock, Xxxxxxx X. Xxxxxxxx
and Xxxxxxx X. Xxxxxxxx (the "Xxxxxxxx Brothers"). For the purposes of
this definition, if an entity is directly or indirectly owned by either
of the Xxxxxxxx Brothers, it shall be deemed owned by both of them; and
(iv) in the case of Xxxxxx LLC, (a) Xxxxx Xxxxxx, (b) Xxxxx
Xxxxxx'x spouse, (c) Xxxxx Xxxxxx'x lineal descendants, (d) the
successors, personal representatives and heirs of any of the individuals
referred to in subclauses (a) through (c) of this clause (iv), (e) any
trustee of any trust created solely for the benefit of any, some or all
of the Persons referred to in this clause (iv) and the collateral
relatives of such Persons (but which may include beneficiaries which are
charities) or any revocable trust created by any, some or all of the
Persons referred to in subclauses (a) through (c) of this clause (iv),
(f) following the death of any individual referred to in subclauses (a)
through (c) of this clause (iv), all beneficiaries under either such
trust, and (g) any entity all of the equity of which is directly or
indirectly owned by any of the foregoing which is not an Affiliate of
any other Person.
"Person" means a corporation, an association, a trust, a
partnership, a joint venture, an organization, a business, an individual, a
government or political subdivision thereof or a governmental body.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the Offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and
all material incorporated by reference in such Prospectus.
"Xxxxx" means Xxxxxxx X. Xxxxx and his Permitted Transferees.
"Registering Holders" means Holders who are participating in the
particular Registration Statement under Section 2 of this Agreement.
"Registrable Securities" means shares of the Class A Common Stock of
the Company held by the Holders or otherwise acquired by the Holders (including
by way of conversion of shares of the Class P Common Stock, the Class T Common
Stock and the
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Class V Common Stock of the Company (collectively, the "Shares") and any
securities issued or issuable with respect to the Shares by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reclassification or other
reorganization; PROVIDED, HOWEVER, that a security shall cease to be a
Registrable Security at such time as it (i) has been effectively registered
under the Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) is distributed to the public pursuant to Rule 144
(or any similar provision then in force) under the Securities Act, (iii) has
otherwise been transferred and a new certificate or other evidence of
ownership for it not bearing a restrictive legend and not subject to any stop
transfer order lawfully has been delivered by or on behalf of the Company and
no other restriction on transfer exists, or (iv) has ceased to be outstanding.
"Registration Statement" shall mean a registration statement filed
by the Company with the Commission at the time such registration becomes
effective, as amended and supplemented by any post-effective amendment.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"Televisa" means Grupo Televisa, S.A. and its Permitted Transferees.
"Televisa Initiating Holders" means Holders of Televisa
Registerable Securities who, in the aggregate, own at least a majority of
Televisa Registrable Securities then held by all Holders of Televisa
Registrable Securities and who have given a Demand Notice pursuant to Section
2.1.
"Televisa Registerable Securities" means Registerable Securities
held by Televisa and Xxxxxx LLC; provided that in the case of Xxxxxx LLC,
Televisa Registerable Securities shall be limited to 11,914,375 shares of
Class A Common Stock (adjusted for stock splits and stock dividends).
"Venevision" means Venevison International Limited and its
Permitted Transferees.
"Venevision Initiating Holders" means Holders of Venevision
Registerable Securities who, in the aggregate, own at least a majority of
Venevision Registrable Securities then held by all Holders of Venevision
Registrable Securities and who have given a Demand Notice pursuant to Section
2.1.
"Venevision Registerable Securities" means Registerable Securities
held by Venevision and Xxxxxx LLC; provided that in the case of Xxxxxx LLC,
Venevision Registerable Securities shall be limited to 11,914,375 shares of
Class A Common Stock (adjusted for stock splits and stock dividends).
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OTHER DEFINITIONS. The following terms shall have the meanings
ascribed to them in the sections indicated below:
DEFINITION SECTION
---------- -------
"Company" Introduction
"Controlling Person" 6.1
"Demand Notice" 2.1
"Demand Registration Statement" 2.1
"Original Common Stock" Recitals
"Other Holders" 2.1
"Other Shares" 2.1.2
"Piggyback Notice" 2.2.1
"Piggyback Registration Statement" 2.2
"Registration Expenses" 5
"Shares" 1
Section 2 REGISTRATION RIGHTS.
2.1 DEMAND REGISTRATION. Commencing six months after the initial
Offering of the Class A Common Stock of the Company, the Perenchio Initiating
Holders, the Televisa Initiating Holders or the Venevision Initiating Holders
may, by written notice to the Company (the "Demand Notice"), demand that the
Company file, and the Company shall file, a Registration Statement as soon as
practicable but no later than 90 days following such demand, covering the
Registrable Securities specified in the Demand Notice by the Initiating
Holders on such form as shall be appropriate under the Securities Act (a
"Demand Registration Statement"). The Perenchio Holders shall be entitled to
demand that the Company file and cause to be declared effective such Demand
Registration Statements on four (4) separate occasions, the Televisa Holders
shall be entitled to demand that the Company file and cause to be declared
effective such Demand Registration Statements on two (2) separate occasions
and the Venevision Holders shall be entitled to demand that the Company file
and cause to be declared effective such Demand Registration Statements on two
(2) separate occasions. In addition, each Holder shall be entitled to demand
that the Company file and cause to be declared effective Ordinary S-3
Registration Statements as provided herein. The Company shall use its best
efforts to cause the Demand Registration Statement to be declared effective
on the date requested by the managing underwriter for the Offering (no
earlier than 60 days from the date of the Demand Notice), or, if such
Offering is not underwritten, as soon as practicable after the filing thereof
with the Commission, and shall keep such Demand Registration Statement
effective for so long as the Offering has not been completed (but in no event
longer than 180 days from the effective date of such Demand Registration
Statement).
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Upon receipt of a Demand Notice, the Company shall provide notice
thereof to the Holders other than the Initiating Holders (the "Other
Holders"). The Other Holders and the Company shall be permitted to register
equity securities of the Company in any Demand Registration Statement or to
participate in the Offering, but only as provided in this Section 2.1, by
requesting that any of their Registrable Securities be included in the Demand
Registration Statement for sale in the Offering on the following terms and
conditions:
2.1.1 Each such Other Holder and/or the Company must give
written notice of such election to the Initiating Holders within 15 days of
the date notice of the Demand Notice was given by the Company to the Holders,
such notice to specify the number of Shares proposed to be sold by each Other
Holder and/or the Company in the Offering (the "Other Shares");
2.1.2 As a condition to participation in a Demand
Registration Statement, each such Other Holder and/or the Company must agree
to sell such Other Shares on the same basis provided in the underwriting
arrangements approved by the Initiating Holders and the Company (including
the standard indemnification provisions contained therein) and to timely
complete and execute all questionnaires, powers of attorney, indemnities,
holdback agreements, underwriting agreements and other documents required
under the terms of such underwriting arrangements or by the Commission or by
any state securities regulatory body;
2.1.3 If the managing underwriter of the Offering determines
that marketing factors require a limitation of the number of shares to be
underwritten, the number of Shares that may be sold by the Other Holders
and/or the Company in the Offering shall be limited to such number of Shares
as the managing underwriter determines may be included therein. In such
event, the Company shall so advise the Other Holders, and the number of
Shares that may be sold in the Offering shall be allocated first, pro rata
among the Initiating Holders and Holders of the same category of Registerable
Securities as those held by the Initiating Holders, second, to the extent
available, to the Company and, third, pro-rata among the Other Holders not
included in the first category above and fourth, to any other party having
registration rights with respect to Shares based upon the respective number
of Shares sought to be included in such Offering; and
2.1.4 If any Other Holder and/or the Company desires to
withdraw its Other Shares from the Demand Registration Statement, it may do
so only during the time period and on the terms to be determined by the
Initiating Holders.
Notwithstanding the generality of the foregoing, the Holders shall
not be entitled to request the Company to file and cause to be effective a
Demand Registration Statement unless the proposed size of the offering of the
Class A Common Stock that relates to the Demand Notice is equal to or greater
than $20,000,000 (based upon the reported trading price of such stock at the
time of the Demand Notice).
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Notwithstanding anything contained in this Section 2.1 to the
contrary, the Company may delay the registration of the Registrable
Securities to which a Demand Notice relates if upon receipt of such Demand
Notice (i) the Company notifies the Holders in writing that it is
contemplating filing a registration statement within 120 days of such demand
(which shall not affect the Holders' other rights hereunder, including
without limitation the Holders' rights under Section 2.2 below), (ii) the
Company notifies the Holders that a material event has occurred or is likely
to occur that has not been publicly disclosed and if disclosed would have a
material adverse effect on the Company and its ability to consummate the
Offering under the Demand Registration Statement or (iii) the Company
determines that the registration and offering could interfere with any
financing, acquisition, disposition, corporate reorganization or other
material transaction involving the Company or its subsidiaries. In the case
of clause (i) of this paragraph, the Company shall use its best efforts, as
soon as practicable, upon the first to occur of the abandonment by the
Company of its contemplated registration statement or the expiration of the
120-day period above to register the Registrable Securities to which a Demand
Notice relates, unless such Demand Notice is withdrawn by the Initiating
Holders. In the case of clause (ii) or clause (iii) of this paragraph, the
Company may not delay the filing of the Demand Registration Statement for
more than 120 days from the date of the Demand Notice unless such Demand
Notice is withdrawn by the Initiating Holders. The Company cannot exercise
the rights of postponement set forth above more than once in any 12-month
period. If there is a postponement under either clause (i), (ii) or (iii)
above, the Demand Notice may be withdrawn by the Initiating Holders by notice
to the Company. In such case, no demand shall have been made for the
purposes of Section 2.1.
2.2 "PIGGYBACK" REGISTRATION. If at any time, or from time to
time, the Company shall determine to file a Registration Statement covering
any shares of its Common Stock (other than a registration statement on Form
S-4 or S-8, or any form substituted therefor) for its own account or for the
account of any stockholder or a Registration Statement filed upon a demand
pursuant to Section 2.1 hereof (a "Piggyback Registration Statement"), the
Holders shall be entitled to include their Registrable Securities in such
registration and related underwritten Offering, if any, on the following
terms and conditions:
2.2.1 The Company shall promptly give written notice of such
determination to the Holders (a "Piggyback Notice") and the Holders shall
have the right to request, by written notice given to the Company within ten
(10) Business Days of the date the Piggyback Notice was given by the Company
to the Holders, that a specific number of Registrable Securities held by the
Holders be included in the Piggyback Registration Statement and related
underwritten Offering, if any;
2.2.2 If the Piggyback Registration Statement relates to an
underwritten Offering, the Piggyback Notice shall specify the name of the
managing underwriter for such Offering. The Piggyback Notice shall also
specify the number of securities to be registered for the account of the
Company and for the account of any stockholder, and the intended method of
disposition of such securities;
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2.2.3 If the Piggyback Registration Statement relates to an
underwritten Offering, as a condition to participation in such Piggyback
Registration Statement, the Holders must agree to sell their Registrable
Securities on the same basis provided in the underwriting arrangements
approved by the Company (including the standard indemnification provisions
contained therein) and to timely complete and execute all questionnaires,
powers of attorney, indemnities, holdback agreements, underwriting agreements
and other documents required under the terms of such underwriting
arrangements or by the Commission or by any state securities regulatory body;
2.2.4 The Company shall use its best efforts to include the
Registrable Securities requested to be registered in the Piggyback
Registration Statement. However, if the managing underwriter for any
underwritten Offering under the Piggyback Registration Statement reasonably
determines that inclusion of all or any portion of the Registrable Securities
in such Offering would materially adversely affect the ability of the
underwriter for such Offering to sell all of the securities requested to be
included for sale in such Offering, and delivers to the Holders its written
opinion to such effect, the number of shares that may be sold in such
Offering shall be allocated, first, to the Company (or, if the Offering is
being made principally for the account of another Person, to such Person),
second to the Holders pro rata among the Holders based upon the respective
number of shares sought by each to be included in the Offering and, third, to
any other third party having registration rights with respect to Shares;
2.2.5 The Holders shall have the right to withdraw their
Registrable Securities from the Piggyback Registration Statement, but if the
same relates to an underwritten Offering, they may only do so during the time
period and on terms agreed upon by the Holders and the underwriters for such
underwritten Offering.
Notwithstanding the foregoing, the Company shall, on five (5)
Business Days notice to the Holders, have the right to withdraw any Piggyback
Registration Statement filed pursuant to this Section 2.2 at any time prior
to the effective date thereof.
2.3 SELECTION OF UNDERWRITERS. If the Registrable Securities
covered by a Demand Registration Statement are to be sold in an underwritten
Offering, the managing underwriter of such Offering may be designated by the
Initiating Holder which underwriter shall be reasonably acceptable to the
Company. Alternatively, if the Registrable Securities included in a Piggyback
Registration Statement are to be sold in an underwritten Offering, the
managing underwriter of such Offering shall be designated by the Company.
Section 3 HOLDBACK AGREEMENTS.
3.1 RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public or private sale or distribution of securities
of the same class as the Registrable Securities, or securities convertible
into or exchangeable or exercisable for securities of the same class as the
Registrable Securities, including a sale pursuant to
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Regulation D under the Securities Act, during the 10-day period prior to, and
during the 90-day period beginning on the closing date of, an Offering made
pursuant to Section 2.1 herein.
3.2 RESTRICTIONS ON PUBLIC SALE BY THE HOLDERS. The Holders
agree, if requested by the managing underwriter of an underwritten Offering
(including, but not limited to, the Company's initial Offering), not to
effect any public sale or distribution of securities of the same class (or
securities exchangeable or exercisable for or convertible into securities of
the same class) as the securities included in the Offering, including, but
not limited to, a sale pursuant to Rule 144 of the Securities Act (except as
part of such underwritten Offering), during the 10-day period prior to, and
during the 180-day period (in the case of the Company's initial Offering) and
90-day period (in the case of subsequent Offerings) (or shorter period
requested by the underwriter) beginning on the effective date of, such
Offering.
Section 4 REGISTRATION PROCEDURES. In connection with the
Company's registration obligations pursuant to Section 2 hereof, the Company
will use its best efforts to effect such registration to permit the sale of
the Registrable Securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company
will as promptly as practicable:
4.1 At least five (5) Business Days before filing a Registration
Statement or Prospectus or any amendments or supplements thereto, furnish to
the Holders who are participating in such Registration Statement (the
"Registering Holders") and the underwriters, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review
of the Registering Holders and such underwriters (and their respective
counsel), and the Company will not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which the
Registering Holders or the underwriters, if any, shall reasonably object;
except that if the Registration Statement is a Piggyback Registration
Statement relating to an underwritten Offering and the underwriters do not
agree with such objection by the Registering Holders and the Registering
Holders are permitted to withdraw any Registrable Securities from such
Offering, the Company can file the Piggyback Registration Statement
notwithstanding such objection by the Registering Holders;
4.1.1 Prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
time period required herein; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with
the intended methods of disposition by the Registering Holders set forth in
such Registration Statement or Prospectus supplement;
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4.1.2 Promptly notify the Registering Holders and the
managing underwriters, and (if requested by any such Person) confirm such
advice in writing, (a) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective; (b) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information; (c) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; (d) if at any time the representations
and warranties of the Company contemplated by Section 8 below cease to be
true and correct; (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and (f) of the happening of any event which
makes any material statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the
Prospectus or any document incorporated therein by reference in order to make
the statements therein not misleading in any material respect;
4.1.3 Make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at
the earliest possible moment;
4.1.4 If requested by the managing underwriters or the
Registering Holders, immediately incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and
the Registering Holders agree should be included therein relating to the sale
of the Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold to such
underwriters or other Persons, the purchase price being paid therefor by such
underwriters or other Persons and any other terms of the distribution of the
Registrable Securities to be sold in such Offering including, if applicable,
any required disclosure of arrangements with underwriters; and make all
required filings of such Prospectus supplement or post-effective amendment as
promptly as practicable after being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
4.1.5 Promptly furnish to the Registering Holders and each
managing underwriter without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
4.1.6 Promptly deliver to the Registering Holders and the
underwriters without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; the Company consents to the use of the
Prospectus or any amendment or supplement thereto by the Registering Holders
and the underwriters in connection with the Offering and
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sale of the Registrable Securities covered by the Prospectus or any amendment
or supplement thereto;
4.1.7 Prior to any Offering of Registrable Securities covered
by a Registration Statement under Section 2, register or qualify or cooperate
with the Registering Holders, the underwriters and their respective counsel
in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as the Registering Holders or underwriter reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the Registration Statement, except that the Company shall not be
required to take any actions under this paragraph 4.1.7 if such actions would
require it to submit to the general taxation of such jurisdiction or to file
therein any general consent to service of process, unless this limitation
means that the Registrable Securities would not be qualified for offer and
sale in at least 20 states;
4.1.8 Use its best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such governmental agencies or authorities other than the
Commission and state securities regulatory bodies as may be necessary to
enable the Registering Holders or the underwriters to consummate the
disposition of such Registrable Securities;
4.1.9 Cooperate with the Registering Holders and the managing
underwriter to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold which do not bear any
restrictive legends; and cause such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter may
request at least two business days prior to any sale of Registrable
Securities to the underwriters;
4.1.10 Upon the occurrence of any event contemplated by
paragraph 4.1.2(f) above, promptly prepare a supplement or post-effective
amendment to the Registration Statement or the Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading;
4.1.11 (a) In addition to the representations and warranties
contained herein, make such representations and warranties to the Registering
Holders and the underwriters as are customarily made by issuers to underwriters
in primary underwritten offerings (or as may be reasonably requested by the
underwriters); (b) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions shall be reasonably satisfactory to the Registering
Holders); (c) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, such letters to be in customary form and covering matters of the
type customarily requested in "cold comfort" letters by underwriters in
connection with primary underwritten offerings
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(or as may be reasonably requested by the underwriters) and to use its best
efforts to obtain such a letter for the Registering Holders or to obtain a
letter from such accountants authorizing the Registering Holders to rely on
such "cold comfort" letter; (d) if an underwriting agreement is entered into,
ensure that the same shall set forth in full the indemnification provisions
and procedures of Section 6 hereof with respect to the Company and the
Registering Holders; and (e) deliver such documents and certificates as may
be requested by the Registering Holders and the managing underwriter to
evidence compliance with clause (a) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company with the Registering Holders. The above shall be done in
connection with each closing under such underwriting or similar agreement or
as and to the extent required thereunder;
4.1.12 Make available for inspection by the Registering
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained by the
Registering Holders or managing underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to be available to discuss and to
supply all information reasonably requested by any such representative,
underwriter, attorney or accountant (or their respective representatives) in
connection with the Registration Statement; PROVIDED, that all such records,
information or documents shall be subject to standard confidentiality
arrangements;
4.1.13 Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and state securities
regulatory bodies; and
4.1.14 Make generally available to its stockholders earnings
statements satisfying the provisions of Section 11(a) of the Securities Act
no later than 30 days after the end of any 12-month period (or 60 days, if
such period is a fiscal year) (a) commencing at the end of any fiscal quarter
in which Registrable Securities are sold to underwriters in a firm or best
efforts underwritten Offering, or, if not sold to underwriters in such an
Offering, (b) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement,
which statements shall cover such 12-month period.
The Registering Holders agree that, upon receipt of any notice from
the Company of the happening of any event of the kind described in paragraph
4.1.2(f) hereof, the Registering Holders will forthwith discontinue
disposition of Registrable Securities under the Prospectus related to the
applicable Registration Statement until the Registering Holders' receipt of
the copies of the supplemented or amended Prospectus contemplated by
paragraph 4.1.10 hereof, or until it is advised in writing by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus. The period during which distribution of the Shares is suspended
pursuant to this paragraph shall not be counted toward completion of the
required period of effectiveness for any registration statement.
12
Section 5 REGISTRATION EXPENSES. Except as provided in the next
to last sentence of this Section 5, all expenses incident to the Company's
performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger expenses,
telephone and delivery expenses, and fees and disbursements of Company
counsel and of independent certified public accountants of the Company
(including the expenses of any special audit required by or incident to such
performance), shall be borne by the Company. The Company will also pay its
internal expenses, the expense of any annual audit and the fees and expenses
of any Person retained by the Company. In addition, the Company agrees to
pay all reasonable fees and disbursements of one counsel (designated by the
Initiating Holders, and if there is no Initiating Holder, by a majority of
the Holders participating in an Offering) to the Holders. All such expenses
are referred to herein as "Registration Expenses." Notwithstanding the
foregoing, if a Holder demands that the Company file and cause to be declared
effective an Ordinary S-3 Registration Statement pursuant to Section 2.1,
such Holder shall bear all Registration Expenses related thereto (other than
the registration fees relating to the Shares to be registered by any Other
Holders, which shall be borne by such Other Holders). All underwriting fees
and commissions with respect to an underwritten Offering, and transfer taxes,
if any, shall be borne by the Company and each Holder in proportion to the
number of Registrable Securities sold by the Company and such Holder.
Section 6 INDEMNIFICATION.
6.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless the Holders, their officers, directors, agents
(including counsel) and employees and each Person who controls the Holders
(within the meaning of Section 15 of the Securities Act) (each, a
"Controlling Person") from and against any and all losses, claims, damages
and liabilities (including any investigation, legal or other expenses
("Losses") reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted) to which
the Holders may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such Losses arise out of or are based upon (a) any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or preliminary prospectus or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (b) any violation by the Company of
the Securities Act or the Exchange Act, or other federal or state law
applicable to the Company and relating to any action or inaction required of
the Company in connection with such registration, and shall reimburse the
Holders or such officer, director, agent (including counsel), employee or
Controlling Person for any legal or other expenses incurred by such Person in
connection with investigating or defending any such Loss; PROVIDED, HOWEVER,
that the Company shall not be liable to the Holders in any such case only to
the extent that any such Loss arises out of or is based upon any alleged
untrue statement or alleged omission made in such Registration Statement,
preliminary Prospectus, Prospectus, or amendment or
13
supplement in reliance upon and in conformity with written information
furnished to the Company by the Holders specifically for use therein. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holders or such officer, director,
agent (including counsel), employee or Controlling Person, and shall survive
the transfer of such securities by the Holders. The Company will also
indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act) to the same extent customarily
requested by such Persons in similar circumstances.
6.2 INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. If
the Holders sell Registrable Securities under a Prospectus which is part of a
Registration Statement, then the Holders, by exercising their registration
rights hereunder, agree to indemnify and hold harmless the Company, its
directors and each officer who signed such Registration Statement and each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act) under the same circumstances as the foregoing indemnity from
the Company to the Holders to the extent, but only to the extent, that such
Losses arise out of or are based upon any untrue statement of a material fact
or omission of a material fact that was made in the Prospectus, the
Registration Statement, or any amendment or supplement thereto, in reliance
upon and in conformity with written information relating to the Holders
furnished to the Company by the Holders expressly for use therein. In no
event shall the aggregate liability of the Holders exceed the amount of the
net proceeds received by the Holders upon the sale of the Registrable
Securities giving rise to such indemnification obligation. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or such officer, director, employee or
Controlling Person, and shall survive the transfer of such securities by the
Holders. The Company and the Holders shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the
same extent as customarily furnished by such Persons in similar circumstances.
6.3 CONTRIBUTION. If the indemnification provided for in
Sections 6.1 or 6.2 is unavailable to an indemnified party or is insufficient
to hold such indemnified party harmless for any Losses in respect of which
Section 6.1 or 6.2 would otherwise apply by its terms (other than by reason
of exceptions provided in Section 6.1 or 6.2), then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
have a joint and several obligation to contribute to the amount paid or
payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that resulted
in such Losses as well as any other relevant equitable considerations. The
relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact, has been taken or made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information
14
and opportunity to correct or prevent any such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by such party
in connection with any investigation or proceeding, to the extent such party
would have been indemnified for such expenses if the indemnification provided
for in Section 6.1 or 6.2 was available to such party.
6.4 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder will (a) give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (b) permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party;
PROVIDED, HOWEVER, that any Person entitled to indemnification hereunder
shall have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at
the expense of such Person and not of the indemnifying party unless (i) the
indemnifying party has agreed to pay such fees or expenses, (ii) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person, or (iii) in the
opinion of counsel of the Person to be indemnified, a conflict of interest
may exist between such Person and the indemnifying party with respect to such
claims (in which case, if the Person notifies the indemnifying party in
writing that such Person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such Person). If such defense
is not assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnified party will
be required to consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by all
claimants or plaintiffs to such indemnified party of a release from all
liability in respect to such claim or litigation. Any indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim.
As used in this Section 6, the terms "indemnifying party," "indemnified
party" and other terms of similar import are intended to include only the
Company (and its officers, directors, employees and each Control Person of
the Company as set forth above) on the one hand, and the Holders (and their
officers, directors, agents (including counsel) employees and each Control
Person of each Holder as set forth above) on the other hand, as applicable.
Section 7 RULE 144. The Company covenants that it will file, on a
timely basis, all reports required to be filed by it under the Securities Act
and the Exchange Act, and it will take such further action and provide such
documents as any holder of Registrable Securities may request, all to the
extent required from time to time to enable the Holders to sell Registrable
Securities without registration under the Securities Act within the
limitation of the conditions provided by (a) Rule 144 under the Securities
Act, as such rules may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the Commission. Upon the request of the
Holders, the Company will deliver to the Holders a written statement
verifying that it has complied with such information and requirements.
15
Section 8 REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company
represents and warrants to and agrees with the Holders that this Agreement
has been duly and validly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company enforceable in
accordance with its terms (except in each such case as enforceability may be
limited to bankruptcy, insolvency, reorganization and other similar laws now
or hereafter in effect relating to or affecting creditors' rights generally
and except that the remedy of specific performance and injunctive and other
forms of equitable relief are subject to certain equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought and except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws).
Section 9 MISCELLANEOUS.
9.1 SPECIFIC PERFORMANCE. The Holders, in addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of damages, will be entitled to specific performance of their rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reasons of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
9.2 NO INCONSISTENT AGREEMENTS. The Company has not previously
entered into, and will not on or after the date of this Agreement enter into,
any agreement with respect to its securities which is inconsistent with the
terms of this Agreement, including any agreement which impairs or limits the
registration rights granted to the Holders or which otherwise conflicts with
the provisions hereof or would preclude the Company from discharging its
obligations hereunder.
9.3 FURNISH INFORMATION. The Company agrees that it shall
promptly deliver to the Holders copies of all financial statements, reports
and proxy statements which the Company is required to send to its
stockholders generally.
9.4 AMENDMENTS. The terms of this Agreement may be amended, and
the observance of any term therein may be waived, but only with the written
consent of Holders of a majority of the then outstanding Perenchio
Registrable Securities, Holders of a majority of the then outstanding
Televisa Registrable Securities, Holders of a majority of the then
outstanding Venevision Registrable Securities and the Company.
9.5 NOTICES. Any notice, demand or delivery pursuant to the
provisions hereof shall be sufficiently delivered or made if and when delivered
in person or by recognized overnight courier, addressed to each the Holders at
its last known address appearing on the books of the Company, or, except as
herein otherwise expressly provided, to the Company at its principal executive
office, 1999 Avenue of the Stars, Xxxxx 0000, Xxx
00
Xxxxxxx, Xxxxxxxxxx, 00000, or such other address as shall have been
furnished to the party giving or making such notice, demand or delivery.
9.6 ASSIGNMENT. This Agreement is assignable by the parties
hereto to (i) their respective Permitted Transferees, and upon assignment
such Permitted Transferees shall become Holders under this Agreement, so long
as such Permitted Transferees agree in writing to be bound by the terms
hereof and (ii) to any lender in connection with a loan to a Holder that is
secured by Registerable Securities, so long as such lender agrees in writing
to be bound by the terms hereof. Other than as set forth above, this
Agreement shall not be assignable.
9.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
9.8 HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
9.9 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of California.
9.10 SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other and of the remaining provisions contained
herein shall not be affected or impaired thereby.
9.11 JURISDICTION; VENUE; SERVICE OF PROCESS. Each of the parties
irrevocably submits to the jurisdiction of any California State or United
States Federal court sitting in Los Angeles County in any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and irrevocably agrees that any such action or
proceeding may be heard and determined only in such California State or
Federal court. Each of the parties irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of any such action or proceeding. Each of the parties consents to
the service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding by delivering of a copy
of the such process to such party at its address specified in or pursuant to
Section 10.3. Each of the parties agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
9.12 ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
17
forth or referred to herein with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
9.13 ATTORNEY'S FEES. In the event of any action, controversy,
claim, counter claim, appeal, arbitration, mediation or dispute between the
parties hereto arising out of or relating to this Agreement or any of the
documents provided for herein, or the breach thereof, the prevailing party
shall be entitled to recover from the other party reasonable attorneys' fees,
expenses and costs incurred in bringing and prosecuting such action and/or
enforcing any judgment, order, ruling or award.
[ REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ]
18
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first above written.
UNIVISION COMMUNICATIONS INC.
/s/ Xxxx X. Xxxxxx
------------------------
By:
Its:
"HOLDERS"
/s/ A. Xxxxxxx Xxxxxxxxx
------------------------
A. XXXXXXX XXXXXXXXX
/s/ A. Xxxxxxx Xxxxxxxxx
------------------------
A. XXXXXXX XXXXXXXXX, Trustee of the
Xxxxx Perrenchio Living Trust dated
April 16, 1987
UNIVISION SPECIAL PARTNERSHIP I, L.P.
By: The Xxxxxx Family L.L.C.
Its: Managing General Partner
By: /s/ Xxxxxx Xxxxx
-------------------------
Xxxxxx Xxxxx
Title: Trustee of the Xxxxx
Xxxxxx 1995 Generation -
Skipping Trust, Member
GRUPO TELEVISA S.A.
By: /s/ Xxxxxxxxx Xxxxxx White
---------------------------
Xxxxxxxxx Xxxxxx White
Title: Exec. Vice President &
Chief Financial Officer
------------------------
UNIVISA, INC.
By: /s/ Xxxxxxxx Dam
--------------------------
Xxxxxxxx Dam
Title: President & Chief Operating Officer
-------------------------------------
GRUPO TELESISTEMA S.A. DE C.V.
By:/s/ Xxxxxxxxx Xxxxxx White
--------------------------
Xxxxxxxxx Xxxxxx White
Its: Exec. Vice Presient &
Chief Financial Officer
-----------------------
UNIVISA BROADCASTING L.P.
By: Univisa Broadcasting Corp.,
Its: General Partner
By: /s/Xxxxxxxx Dam
------------------------
Vice President
Secretary
Its: Lawrence Dam
-----------------------
By: /s/Xxxxxxxx Dam
---------------------------
Title:
------------------------
20
UNIVISION SPECIAL PARTNERSHIP II,
L.P.
By: The Xxxxxx Family L.L.C.
Its: Managing General Partner
By: /s/ Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
Title: Trustee of the Xxxxx Xxxxxx
1995 Generation - Skipping Trust
VENEVISION INTERNATIONAL LTD.
By: /s/ Xxxxxxx X. Illegible
-------------------------------
Title: Attorney-in-fact
----------------------------
21
DENNEVAR B.V.
By: illegible
----------------------------
Title: Attorney-in-fact
-------------------------
BRAVO ENTERPRISES, INC.
By: illegible
----------------------------
Title: Attorney-in-fact
--------------------------
UNIVISION SPECIAL PARTNERSHIP III,
L.P.
By: The Xxxxxx Family L.L.C.
Its: Managing General Partner
By: /s/ Xxxxxx Xxxxx
----------------------
Xxxxxx Xxxxx
Title: Trustee of the Xxxxx Xxxxxx
1995 Generation - Skipping
Trust, Member
22
XXXXX FAMILY PARTNERSHIP, L.P.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Xxxxxxx Xxxxx
Its: General Partner
By: /s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx
Its: General Partner
XXXXX LIVING TRUST dated
September 9, 1994
By: /s/ Xxxxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx
Its: Trustee
