EXHIBIT 10.6
TELEMUNDO COMMUNICATIONS GROUP, INC.
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
DATED AS OF MAY 31, 2001
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this "Agreement") is
made as of May 31, 2001 ("Effective Date") by and among Telemundo Communications
Group, Inc., a Delaware corporation (the "Company"), Station Partners, LLC, a
Delaware limited liability company ("Station Partners"), Sony Pictures
Entertainment Inc., a Delaware corporation ("SPE"), Liberty Media Corporation, a
Delaware corporation ("Liberty"), 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"), TLMD LLC, a Delaware limited liability
company ("TLMD"), Xxxxxxxxxx Investments, Inc. ("VII"), The Bron 2000 Trust (the
"Bron Trust"), and Xxxx-Xxxxxxxxxx Capital, LLC, a Delaware limited liability
company ("BV Capital") (Station Partners, SPE, Liberty and BV Capital are
hereinafter sometimes referred to as the "Common Stockholders") (together, the
Company, Council Tree, BCF, Bastion, TLMD, VII, Bron Trust and the Common
Stockholders are the "Parties"), with reference to the following facts:
A. Bastion, BCF, BV Capital, Council Tree, Council Tree Communications,
LLC, Council Tree Communications V, LLC, Liberty, SPE and the Company entered
into a Contribution Agreement, dated as of August 22, 2000, as amended December
15, 2000 (the "Contribution Agreement"). On December 15, 2000, all of the
Parties to this Agreement (except TLMD, VII and Bron Trust) entered into a
Stockholders' Agreement (the "Original Agreement") in connection with the
consummation of the transactions contemplated by the Contribution Agreement.
B. Concurrently herewith, certain of the Stockholders made capital
contributions to the Company in exchange for the issuance by the Company of
shares of Preferred Stock (as defined below).
C. 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")
and 37,773 shares of the Series A Convertible Preferred Stock, par value $0.01
per share, of the Company (the "Series A Preferred Stock").
D. Liberty owns, in the aggregate, 587,568 shares of the Class A Common
Stock and 37,773 shares of the Series A Preferred Stock.
E. 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") and 19,164 shares of the Series B Convertible
Preferred Stock, par value $0.01 per share, of the Company (the "Series B
Preferred Stock").
F. BV Capital owns, in the aggregate, 83,581 shares of the Class A Common
Stock.
G. TLMD owns, in the aggregate, 14,809 shares of the Series A Preferred
Stock.
H. Concurrently with the transactions contemplated by the Contribution
Agreement, on December 15, 2000, 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.
I. SPE Mundo owns Class B Membership Interests of Network Group
exchangeable into 232,181 shares of Class A Common Stock, subject to adjustment.
J. 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.
K. The Parties desire to amend and restate the Original Agreement in
order to reflect the consequences of the issuance of Preferred Stock, among
other related changes.
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 Amended and Restated 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,
----------------------------
TLMD, VII, Bron Trust 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).
2
"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.
-----
"Bron Trust" shall have the meaning given in the preamble to this
----------
Agreement.
"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.
"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 BV Capital 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 the Amended and Restated BV Capital
-----------------------------
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 Designation" means the Certificate of Designation of the
--------------------------
Company filed on May 31, 2001, authorizing the creation and issuance of up to
90,355 shares of Series A Preferred Stock and the Certificate of Designation of
the Company filed on May 31, 2001, authorizing the creation and issuance of up
to 19,164 shares of Series B Preferred Stock.
"Certificate of Incorporation" means the Restated 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 Company Stock held by such Stockholder are not Beneficially
Owned at least 50% by the Ultimate Parent Entity of such Stockholder.
3
"Class A Common Stock" shall have the meaning given in Recital C 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 $0.01 per share, of
------------
the Company.
"Common Stockholders" shall have the meaning given in the preamble to this
-------------------
Agreement.
"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.
"Company Stock" shall collectively mean the Company Common Stock and the
-------------
Preferred Stock.
"Contribution Agreement" shall have the meaning given in Recital A to this
----------------------
Agreement.
"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, including but not limited to SPE
Mundo, 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, including but not limited to Liberty
TelemundoNet.
"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.
4
"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
------------------
December 15, 2000, 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, including the Preferred Stock,
have been converted into Company Common Stock, and 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.
"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.
"Holder's Company Stock" shall mean the Holder's Common Stock and the
----------------------
Holder's Preferred Stock.
"Holder's Preferred Stock" shall mean the Preferred Stock held by each
------------------------
Stockholder.
"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
5
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 on May 31, 2001 by Liberty and
-------------
Liberty TelemundoNet to Station Partners to vote all of the shares of the
Holder's Company Stock held by Liberty and Liberty TelemundoNet, as it may be
amended from time to time.
"Liberty TelemundoNet" means Liberty TelemundoNet, Inc., a Delaware
--------------------
corporation.
"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;
(b) Issuing or redeeming any equity or debt securities (other than shares
of Company 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, debt
securities issued to Network Group or shares of Company Stock issuable pursuant
to the conversion rights described in the Certificate of Designation), or any
options, warrants or other securities that 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,
6
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 the Original
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 Company 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).
"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 December 15, 2000, as it
may be amended from time to time.
"Offeree Stockholder" shall have the meaning given in Section 3.3.6.
-------------------
"Offering 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.
--------------------------
7
"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 Stock who acquires
--------------------
such Company 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.
"Preferred Stock" shall mean the shares of Series A Preferred Stock and
---------------
Series B Preferred Stock.
"Preferred Call" shall have the meaning given in Section 4.2.
"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 Common Stockholder and whose
denominator is the total number of shares of Holder's Common Stock (excluding,
in each case, any shares of Company Common Stock issued or issuable upon
conversion of the Preferred 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 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 Amended and Restated Registration
-----------------------------
Rights Agreement by and among Station Partners, Liberty, SPE, BV Capital, TLMD
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.
----------------
8
"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.
"Series A Preferred Stock" shall have the meaning given in Recital C to
------------------------
this Agreement.
"Series B Preferred Stock" shall have the meaning given in Recital E to
------------------------
this Agreement.
"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 H 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.
--------------------------
"Station Partners LLC Agreement" means that certain Second Amended and
------------------------------
Restated Limited Liability Company Agreement dated as of the date hereof, among
BCF, Council Tree, VII and the Bron Trust, as it may be amended from time to
time.
9
"Station Partners Preferred Put/Call Agreement" means the Station Partners
---------------------------------------------
Preferred 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.
"Station Partners Put/Call Agreement" means the Amended and Restated
-----------------------------------
Station Partners 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 mean the Common Stockholders and TLMD.
-----------
"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, with respect to BV Capital, a BV Capital
Controlled Affiliate, and with respect to TLMD, a Bastion 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.
"TLMD" shall have the meaning given in the preamble to this Agreement.
----
"TLMD LLC Agreement" means that certain Limited Liability Company Agreement
------------------
of TLMD dated as of the date hereof.
"TLMD Put/Call Agreement" means the TLMD Preferred Put/Call Agreement,
-----------------------
dated as of the date hereof, by and among TLMD, SPE and Liberty, as it may be
amended from time to time.
"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).
------------------
10
"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.
"VII" shall have the meaning given in the preamble to this Agreement.
---
ARTICLE 2
CORPORATE GOVERNANCE
2.1 Board of Directors
------------------
2.1.1 Composition of Board
(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 Company 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 Company 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 Company 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 Company 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
11
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
Company Stock. In the event 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 Company 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 Company Stock initially held by such Stockholder. Subject to the last
sentence of Section 3.1 hereof, if Station Partners Transfers its Holder's
Company 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 Company
Stock beneficially owned by it to cause the SPE
12
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.
2.1.3 Removal. A director may be removed only by the party or
-------
parties that 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 Company 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 Company Stock in a
voting trust or subject any shares of Holder's Company 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, the TLMD LLC Agreement
and 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
13
Company 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 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 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 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 Company 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. Subject to reduction as set forth in
--------------------------
Section 2.1.6(b), 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 Company 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
14
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 meeting to the directors who are not present at the time
of the adjournment. Meetings of the Board may be held at any place that 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
15
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.
2.6 Major Decisions. Except as set forth in the last sentence of this
---------------
Section 2.6, 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. In addition, each
Stockholder agrees that it will not approve any Merger Event (as defined in the
Certificate of Incorporation) where the Company would not have sufficient funds
to redeem shares of Preferred Stock in accordance with the Certificate of
Designation. 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 have agreed on
-------------------------
the initial business plan (the "Business Plan") of the Company and its
Subsidiaries, covering the period from December 15, 2000 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 have agreed that
----------------------
the budget of the Company and its Subsidiaries, covering the period from
December 15, 2000 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
16
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).
2.8 Shares Held by Stockholder Controlled Affiliates. Each of the
------------------------------------------------
Stockholders agrees that in the event any shares of Company Stock are held by
any of its Stockholder Controlled Affiliates that are the Permitted Transferees
of such Stockholder's Company Stock (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 such Stockholder Controlled Affiliates that hold such shares
shall be treated as one Stockholder for the purposes of all provisions of this
Agreement. The Stockholders acknowledge and agree that (i) with respect to
Liberty, Liberty TelemundoNet is a Permitted Transferee, and a Stockholder
Controlled Affiliate, of Liberty, and (ii) with respect to SPE, SPE Mundo is a
Permitted Transferee, and a Stockholder Controlled Affiliate, of SPE. Each
Stockholder agrees that it will cause its applicable Stockholder Controlled
Affiliates that are Permitted Transferees of such Stockholder's Company Stock 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 on behalf of both the Stockholder and its
Stockholder Controlled Affiliates if such Stockholder Controlled Affiliates are
the Permitted Transferees of such Stockholder's Company Stock. In addition, to
the extent that any determination to be made under this Agreement is based on
the number of shares held, then all of the shares of Company Stock held by any
Stockholder Controlled Affiliate that is a Permitted Transferee of all or a
portion of such Stockholder's Company Stock shall be treated, for all purposes,
as if held by the Stockholder party to this Agreement. All Company 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 Stock has been foreclosed upon or such forward sale or similar financing
transaction has been consummated and in connection therewith the Company 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 Stock.
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General Prohibition on Transfer of Company 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, Bastion, BCF, VII and Bron
Trust, by way of any Transfer of an interest in Station Partners) any of the
shares of Company Stock or any interest therein held directly or indirectly by
it. Any attempted Transfer of shares of Company 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,
17
Bastion, BCF, VII and Bron Trust, 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 Stock, the
shares of Company Stock so Transferred shall continue to be subject to the terms
and provisions of this Agreement (other than shares of Company 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 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 (including, in the case of Council Tree,
Bastion, BCF, VII and Bron Trust, by way of any Transfer of an interest in
Station Partners) 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), TLMD or VII
or Bron Trust or Bastion or BCF (in the case where TLMD or VII or Bron Trust or
Bastion or BCF or a Permitted Transferee of TLMD or VII or Bron Trust or Bastion
or BCF is the Transferor). Prior to the initial acquisition of beneficial
ownership of any Company 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, Bastion, BCF, VII and Bron
Trust, 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, Bastion,
BCF, VII or Bron Trust 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
-------------------
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 shares of Company
------------------
Stock held by it effected pursuant to the express provisions of the Station
Partners Put/Call Agreement and the Station Partners Preferred Put/Call
Agreement.
(b) Bona Fide Pledges. A pledge of shares of Company 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
December 15, 2002, or to
18
exercise any voting rights with respect to the Company 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 Stock or membership interests, as the case may be, and
any such foreclosure shall be subject, as applicable, to the rights of Liberty
and SPE to give a call notice under the Station Partners Put/Call Agreement or
Station Partners Preferred Put/Call Agreement and purchase such stock pursuant
to the Station Partners Put/Call Agreement or Station Partners Preferred
Put/Call Agreement.
(c) Partial Transfers. A Transfer of any portion of
-----------------
Station Partners' Company 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 Stock after December 15, 2002 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:
(a) Transfers to Controlled Affiliates. Transfers of all
----------------------------------
or any portion of the shares of Company 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 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 the 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 Stock after December 15, 2002, 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 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 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 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 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 Stock Transferred by
such Stockholder).
19
(e) Compliance with Regulatory Restrictions. Transfers of
---------------------------------------
all or any portion of the shares of Company 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 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 Stock
-----------------
by it to a financial institution and, in connection with a pledge of the shares
of Company 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
December 15, 2002, or to exercise any voting rights with respect to the Company
Stock, 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
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 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 Stock of the Company from the amount represented
in the Contribution Agreement.
3.3.4 Bastion, BCF, VII and Bron Trust.
--------------------------------
(a) In the case of Bastion, BCF, VII and Bron Trust and
their respective Permitted Transferees, a Transfer of all or any portion of the
membership interests of Station Partners held by Bastion, BCF or VII or Bron
Trust, as the case may be, 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 or BCF's or Bron Trust's or VII's
knowledge, as the case may be, in any increase in alien ownership of the Company
Stock of the Company from the amount represented in the Contribution Agreement.
20
(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 or VII or Bron Trust, as the case may be, 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, TLMD,
Liberty and SPE agree to use its commercially reasonable efforts to identify a
mutually acceptable purchaser of Bastion's or BCF's or VII's or Bron Trust's, as
the case may be, membership interests in Station Partners and to cooperate with
Bastion or BCF or VII or Bron Trust, as the case may be, in its attempts to
effect such Transfer (which covenant shall not obligate any of TLMD, 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 and TLMD. In the case of BV Capital or TLMD and
-------------------
their respective Permitted Transferees:
(a) Put/Call Agreement. A Transfer of all but not less
------------------
than all of the shares of Company Stock held by BV Capital or TLMD, as the case
may be, effected pursuant to the express provisions of the BV Capital Put/Call
Agreement or TLMD Put/Call Agreement, as the case may be.
(b) Transfers to a BV Capital Controlled Affiliate or a
---------------------------------------------------
Bastion Controlled Affiliate. A Transfer of all or any portion of the shares of
----------------------------
Company Stock held by BV Capital or TLMD, as the case may be, to, in the case of
BV Capital, a BV Capital Controlled Affiliate or in the case of TLMD, 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
the knowledge of BV Capital or TLMD, as the case may be, in any increase in
alien ownership of the Company Stock of the Company from the amount represented
in the Contribution Agreement.
(c) Bona Fide Pledges, Etc. (1) In the case of BV Capital,
-----------------------
(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 any material pending transaction of
the Company after the date hereof or would result in a breach of Section 8.1
hereof), a substantially similar financing or other Encumbrance (as defined in
the Contribution Agreement) of BV Capital's or a BV Capital Controlled
Affiliate's (excluding in each case, Bastion or BCF or a Bastion Controlled
Affiliate with respect to Station Partners Company Stock) Company 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.
21
(2) In the case of TLMD, a pledge of shares of Company
Stock by TLMD to a financial institution and, in connection with a pledge by
TLMD, 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 December 15, 2002, or to
exercise any voting rights with respect to the Company Stock, 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 Stock, and any such
foreclosure shall be subject to the rights of Liberty and SPE to give a call
notice under the TLMD Put/Call Agreement and purchase such stock pursuant to the
TLMD Put/Call Agreement.
(d) Transfers. A Transfer of all or any portion of BV
---------
Capital's Company Stock or TLMD's Company Stock effected after the earlier of an
IPO and December 15, 2002, if BV Capital or TLMD, as the case may be, 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
Stock unless the BV Capital Put/Call Agreement has been terminated.
(e)
3.3.6 Right of First Offer - Complete Transfers. Prior to a
-----------------------------------------
Primary Stockholder effecting a Transfer pursuant to the provisions of Sections
3.3.1(d) or 3.3.2(c), the Primary Stockholder (each, an "Offering 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 Offering Stockholder
must comply with the terms of Section 3.3.8.
The Offering 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 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 Offeree Stockholders shall have the right to purchase
(subject to necessary regulatory approvals) such Company 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 the
Transferring Stockholder and to each other Offeree Stockholder (the "First Offer
Election Notice") within such First Offer Period, to purchase such shares of
Company Stock at a price equal to the Proposed Price. If any Offeree Stockholder
duly and timely delivers a First Offer Election Notice to the Transferring
Stockholder and each other Offeree Stockholder in respect of any shares of
Company Stock 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 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
22
portion of the shares of Company Stock offered (based upon the number of shares
of Company Stock then held by the Offeree Stockholders electing to participate
in such sale). The purchase of any shares of Company 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 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 Stock shall
comply with restrictions imposed upon ownership by such Stockholder (or any of
its Affiliates or Ultimate Parent Entity) of the Company 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 December 15, 2002, if any two Primary
Stockholders desire to sell all of the Company 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 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 Stock thereunder. Each other Stockholder shall effect its sale of all of
its Company 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 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 Stockholders shall be delivered to the Buyer(s) in consummation
of the sale of all of the Company 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 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
23
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
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 Stock sold by such Stockholder
pursuant to this Section 3.3.7.
3.3.8 Tag Along Rights.
----------------
(a) After December 15, 2002, if any two Primary
Stockholders desire to sell all of their Company 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 Stock to
be sold to the third party equal to the ratio (expressed as a percentage) of (1)
the number of shares of Company Stock owned by the Stockholder (calculated on a
Fully Diluted basis), as compared with (2) the aggregate number of shares of
Company 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 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 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 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 Stock to the buyer(s) (other than such representations, warranties and
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 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
24
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
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 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 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
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 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 Stock offered (based upon the number of shares of Company Stock then
held by the Partial Offeree Stockholders electing to participate in such sale).
The purchase of any shares of Company 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 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 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 or the date after such 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 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 Stock to a third party at a
25
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 Stock shall comply with restrictions imposed upon
ownership by such Stockholder (or any of its Affiliates or Ultimate Parent
Entity) of the Company 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 Common Stockholders to contribute and the Common
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 Common
Stockholders simultaneously, (ii) each Common Stockholder shall contribute an
amount equal to 86.3711% of the Mandatory Capital Call multiplied by its
Proportionate Share, (iii) no Common 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 Common 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 Common 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 Common 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 Common Stockholders to
contribute and the Common Stockholders shall be obligated to contribute to the
capital of the Company the applicable amount so approved by the Common
Stockholders; provided, that (i) except as otherwise agreed by the Common
Stockholders, Special Mandatory Capital Calls shall be called from all Common
Stockholders simultaneously, (ii) each Common Stockholder shall contribute the
amount so approved with respect to such Common Stockholder, (iii) notice of a
Special Mandatory Capital Call must be delivered to the Common 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 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 Common Stockholders pursuant to this Section 4.1(b) until such
requirements are fulfilled. Notwithstanding anything to the contrary herein, the
capital contributions made to the Company on or prior to the date hereof for the
purpose of purchasing the Preferred Stock shall be deemed for all purposes under
this Agreement to be Special Mandatory Capital Calls, except to the extent set
forth in Section 4.2 below.
26
4.2 Aggregate Maximum Contribution Amount. As to each Common Stockholder,
-------------------------------------
the "Aggregate Maximum Contribution Amount" shall mean each Common 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 Common 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 Common Stockholder fails to contribute its allocable portion of a
Mandatory Capital Call or the amount of its approved 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 Common 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 Common Stockholder shall concurrently with such Transfer
pay the Dilution Amount (as defined below) in accordance with Section 4.5.
Notwithstanding anything to the contrary contained herein, each of the Parties
acknowledges and agrees that neither BV Capital nor Station Partners (with
respect to amounts to be contributed to Station Partners by BCF Media in excess
of $613,000) was required to contribute its Proportionate Share of the Special
Mandatory Capital Call (as defined in the Original Agreement) (the "Preferred
Call") pursuant to the terms of the Equity Contribution Agreement, dated as of
February 9, 2001, by and among TCG, Council Tree, BCF, BV Capital, SPE, Liberty
and Station Partners, contributions pursuant to which have been made as of May
30, 2001 by Station Partners, TLMD, SPE and Liberty in exchange for the issuance
of shares of the Company Preferred Stock and in no event shall the failure of
either BV Capital or Station Partners (to the extent allocable to BCF Media in
excess of $613,000) to make its Proportionate Share of the Preferred Call be
considered a Capital Call Default (as defined in the Original Agreement) with
respect to BV Capital or Station Partners for purposes of this Agreement, the
Station Partners Put/Call Agreement or the BV Capital Put/Call Agreement.
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 Common Stockholder. Each
Common Stockholder shall have the right to decline to meet such call. Whether or
not all Common Stockholders contribute their Pro Rata portion of the
Discretionary Capital Call or less than all Common 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.
27
4.4 Substitute Contributor. Bastion or BCF shall be entitled to designate
----------------------
BV Capital or another Bastion Controlled Affiliate to satisfy the obligations of
Station Partners required to be funded by 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 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 Common 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
Common Stockholders in accordance with their Proportionate Share (which for
purposes of this Section 4.5(b) only, means the fraction whose numerator is the
number of shares of Holder's Common Stock on a Fully Diluted basis owned by a
Common Stockholder and whose denominator is the total number of shares of
Holder's Common Stock on a Fully Diluted basis (provided, that, "Fully Diluted"
for these purposes shall have the meaning given in Article 1 excluding any
shares of Company Common Stock issued or issuable upon conversion of outstanding
options, warrants, rights or other convertible securities of the Company,
including Preferred 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 Parties 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 Party, for so long as such Party is a
28
direct or indirect holder of Company 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 Stock, each Party 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 Party 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, as the case may be.
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. As of the date hereof, 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
29
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 Company 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 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, TLMD, BV Capital, VII, and Bron
Trust 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, Bastion, TLMD,
VII, and Bron Trust agrees that if, subsequent to the date hereof, the aggregate
alien ownership of BV Capital, BCF, Bastion, TLMD, VII, and Bron Trust and
attributable to the Company is greater than 0.54%, each of BV Capital, BCF,
Bastion, TLMD, VII, and Bron Trust 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, Bastion, TLMD, VII, and Bron Trust 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, BV Capital,
BCF, Bastion, TLMD, VII, and Bron Trust 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
30
Communications Act and FCC Regulations, and Council Tree, BV Capital, BCF,
Bastion, TLMD, VII, and Bron Trust 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 Stock, and in the case of SPE Mundo, the Class B Membership Interests,
and, in the case of Council Tree, Bastion, BCF, VII and Bron Trust, 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 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, BCF, VII, Bron Trust 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 Company 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, VII,
Bron Trust 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
31
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 it 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 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. 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.
32
9.3 Legends.
--------
(a) After the date hereof and 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 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 AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT DATED AS OF MAY 31, 2001 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, TLMD LLC, XXXXXXXXXX INVESTMENTS, INC., THE
BRON 2000 TRUST, STATION PARTNERS, LLC AND TELEMUNDO
COMMUNICATIONS GROUP, INC., A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICE OF TELEMUNDO COMMUNICATIONS
GROUP, INC."
(b) The certificates representing the shares of Company 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 Stock in order
to implement the restrictions on Transfer set forth in this Agreement.
(d) In connection with any Transfer of Company 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 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
33
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
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
34
with a copy (which shall not constitute notice) to:
Sony Pictures Entertainment Inc.
00000 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
Citigroup Center
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx
(d) If to Bastion or BCF or Bron Trust or VII, 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
35
(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 TLMD, to:
-------------------
TLMD 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 each:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
and
Office of General Counsel
Xxxxxxx Xxxxx
4 World Financial Center, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(g) If to the Company, to:
-------------------------
Telemundo Communications Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
36
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, including the Original Agreement. No
representation, statement, condition or warranty not contained in this Agreement
shall be binding 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.
37
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.
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 each 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.
----------------------------
9.20.1 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 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 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.
38
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be
effective as of the Effective Date.
TELEMUNDO COMMUNICATIONS COUNCIL TREE HISPANIC
GROUP, INC. BROADCASTERS II, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxxx
Title: C.F.O. and Treasurer Title: Chief Executive Officer
THE BRON 2000 TRUST DATED TLMD LLC
SEPTEMBER 29, 2000
By: DDG Capital, LLC, as Manager
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
--------------------------------- --------------------------------
Name: Xxxxxxx (Xxxxxxxxx) Bron Name: Xxxxxxx (Xxxxxxxxx) Bron
Title: Trustee Title: its Manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: its Manager
XXXXXXXXXX INVESTMENTS, INC. XXXX-XXXXXXXXXX CAPITAL, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
--------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxxxx (Xxxxxxxxx) Bron
Title: President Title: a Control Manager
SONY PICTURES ENTERTAINMENT INC. LIBERTY MEDIA CORPORATION
By: /s/ Xxxx Xxxx By: /s/ Xxxxx X. Xxxx
--------------------------------- --------------------------------
Name: Xxxx Xxxx Name: Xxxxx X. Xxxx
Title: Senior Vice President and Title: Senior Vice President
Assistant Secretary
BCF MEDIA, LLC STATION PARTNERS, LLC
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
---------------------------------
Name: Xxxxxxx (Xxxxxxxxx) Bron By: Council Tree Hispanic Broadcasters
Title: Manager II, L.L.C., as Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------- By: /s/ Xxxxx Xxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx ------------------------------
Title: Manager Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
BASTION CAPITAL FUND, L.P.
By: Bastion Partners, L.P.,
Its General Partner
By: Bron Corp.,
Its Co-general Partner
By: /s/ Xxxxxxx (Xxxxxxxxx) Bron
-------------------------------------
Xxxxxxx (Xxxxxxxxx) Bron, President
By: Xxxxxxxxxx Investments, Inc.,
Its Co-general Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
With respect to Article 5 hereof,
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
