<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 27, 1998
REGISTRATION NO. 333-44213
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
UNIVISION COMMUNICATIONS INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4830 95-4398884
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
1999 AVENUE OF THE STARS, SUITE 3050
LOS ANGELES, CALIFORNIA 90067
(310) 556-7676
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
ROBERT V. CAHILL
SECRETARY
UNIVISION COMMUNICATIONS INC.
1999 AVENUE OF THE STARS, SUITE 3050
LOS ANGELES, CALIFORNIA 90067
(310) 556-7676
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
COPIES TO:
KENDALL R. BISHOP, ESQ. BRYANT B. EDWARDS, ESQ.
O'Melveny & Myers LLP Latham & Watkins
1999 Avenue of the Stars 633 West Fifth Street
Suite 700 Suite 4000
Los Angeles, California 90067 Los Angeles, California 90071
(310) 246-6780 (213) 485-1234
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
--------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement
*3.1 Restated Certificate of Incorporation of the Company
*3.1a Certificate of Designation, Preferences and Rights of Series A Cumulative Convertible Preferred Stock of
the Company
*3.1b Certificate of Amendment of Restated Certificate of Incorporation of the Company
*3.2 Amended and Restated Bylaws of the Company
*5 Opinion of O'Melveny & Myers LLP, legal counsel for the Company
*11.1 Computation of Historical Primary and Fully Diluted Earnings Per Share
*23.1 Consent of Arthur Andersen LLP, independent accountants of the Company
*23.2 Consent of O'Melveny & Myers LLP, legal counsel for the Company (included in Exhibit 5)
*24 Power of Attorney (contained in Part II of the Registration Statement)
</TABLE>
- ------------------------
* Previously filed.
(a) FINANCIAL STATEMENT SCHEDULES.
All schedules are omitted because they are not required, are not applicable,
or the information is incorporated by reference.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Angeles, County of
Los Angeles, State of California, on the 26th day of January, 1998.
UNIVISION COMMUNICATIONS INC.
By: /s/ GEORGE W. BLANK
-----------------------------------------
George W. Blank
EXECUTIVE VICE PRESIDENT AND CHIEF
EXECUTIVE OFFICER, IN HIS CAPACITY AS
CHIEF FINANCIAL OFFICER AND PRINCIPAL
ACCOUNTING OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Chairman of the Board and January 26, 1998
A. Jerrold Perenchio Chief Executive Officer
Executive Vice President
and Chief Financial
/s/ GEORGE W. BLANK Officer, in his
- ------------------------------ capacities as chief January 26, 1998
George W. Blank financial officer and
principal accounting
officer
*
- ------------------------------ President, Chief Operating January 26, 1998
Henry Cisneros Officer and Director
*
- ------------------------------ Director January 26, 1998
Gustavo Cisneros
*
- ------------------------------ Director January 26, 1998
Lawrence Dam
*
- ------------------------------ Director January 26, 1998
Harold Gaba
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Director January 26, 1998
Alan Horn
*
- ------------------------------ Director January 26, 1998
John Perenchio
*
- ------------------------------ Director January 26, 1998
Ray Rodriguez
</TABLE>
* The undersigned, by signing his name hereto, does sign and execute this
Amendment No. 1 to Registration Statement pursuant to the Power of Attorney
executed by the above-named officers and Directors and filed with the Securities
and Exchange Commission on behalf of such officers and Directors.
* /s/ GEORGE W. BLANK
-------------------------
George W. Blank
ATTORNEY-IN-FACT
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- ---------
<S> <C> <C>
1 Form of Underwriting Agreement
*3.1 Restated Certificate of Incorporation of the Company
*3.1a Certificate of Designation, Preferences and Rights of Series A Cumulative Convertible Preferred
Stock of the Company
*3.1b Certificate of Amendment of Restated Certificate of Incorporation of the Company
*3.2 Amended and Restated Bylaws of the Company
*5 Opinion of O'Melveny & Myers LLP, legal counsel for the Company
*11.1 Computation of Historical Primary and Fully Diluted Earnings Per Share
*23.1 Consent of Arthur Andersen LLP, independent accountants of the Company
*23.2 Consent of O'Melveny & Myers LLP, legal counsel for the Company (included in Exhibit 5)
*24 Power of Attorney (contained in Part II of the Registration Statement)
</TABLE>
- ------------------------
* Previously filed.
<PAGE>
21,000,000 Shares
UNIVISION COMMUNICATIONS INC.
Class A Common Stock
UNDERWRITING AGREEMENT
February __, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BT ALEX. BROWN INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
SCHRODER & CO. INC.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
The stockholders and warrantholders of Univision Communications
Inc., a Delaware corporation (the "COMPANY"), named in Schedule II hereto
(the "SELLING STOCKHOLDERS") severally propose to sell to the several
underwriters named in Schedule I hereto (the "UNDERWRITERS") an aggregate of
20,440,000 issued and outstanding shares of the Class A Common Stock, par
value $0.01 per share ("COMMON STOCK"), of the Company (the "FIRM SHARES"),
and warrants (the "FIRM WARRANTS") immediately exercisable for 560,000 shares
of Common Stock (the "FIRM WARRANT SHARES"), each Selling Stockholder selling
the amount of Firm Shares or Firm Warrants set forth opposite such Selling
Stockholder's name in Schedule II hereto. The Selling Stockholders also
severally propose to sell to the several Underwriters not more than an
additional 2,610,000 shares of the Class A Common Stock, par value $0.01 per
share, of the Company (the "ADDITIONAL SHARES"), and additional warrants (the
"ADDITIONAL WARRANTS") immediately exercisable for 540,000 shares of Common
Stock (the "ADDITIONAL WARRANT SHARES"), if requested by the Underwriters as
provided in Section 2 hereof. The Firm Shares and the Firm Warrants are
hereinafter referred to collectively as the "FIRM SECURITIES." The Additional
Shares and the Additional Warrants are herein referred to collectively as the
"ADDITIONAL SECURITIES." The Firm Warrants and the Additional Warrants are
hereinafter referred to collectively as the "WARRANTS" and the Firm Warrant
Shares and the Additional Warrant Shares are
1
<PAGE>
hereinafter referred to collectively as the "WARRANT SHARES." The Firm
Shares, the Additional Shares and the Warrant Shares are hereinafter referred
to collectively as the "SHARES."
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "REGISTRATION STATEMENT";
and the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "PROSPECTUS" (including, in the case of all
references to the Registration Statement or the Prospectus, documents
incorporated therein by reference). If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Common Stock (a "RULE
462(b) REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement. The terms "supplement" and "amendment" or
"amend" as used in this Agreement with respect to the Registration Statement or
the Prospectus shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
"EXCHANGE ACT") that are deemed to be incorporated by reference in the
Prospectus.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE AND LOCK-UP AGREEMENTS. On
the basis of the representations and warranties contained in this Agreement,
and subject to its terms and conditions, (i) each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters the number of Firm Shares
or Firm Warrants set forth opposite such Selling Stockholder's name in Schedule
II hereto and (ii) each Underwriter agrees, severally and not jointly, to
purchase from each Selling Stockholder at a price per Firm Share of $______ (the
"SHARE PURCHASE PRICE") and a price per Firm Warrant equal to the Share Purchase
Price less $0.06439 (the "WARRANT PURCHASE PRICE") the number of Firm Shares or
Firm Warrants (subject to such adjustments to eliminate fractional shares as you
may determine) that bears the same proportion to the total number of Firm Shares
or Firm Warrants to be sold by such Selling Stockholder as the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I hereto
bears to the total number of Firm Securities.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, the Selling
Stockholders severally agree to sell the Additional Shares and Additional
Warrants and the Underwriters, severally and not jointly, shall have the right
to purchase from the Selling Stockholders up to 2,610,000 Additional Shares at
the Share Purchase Price and up to 540,000 Additional Warrants at the Warrant
Purchase Price. Additional Securities may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Shares and the Firm Warrant Shares. The Underwriters may exercise their right
to purchase Additional Securities in whole or in part from time to time by
giving written notice thereof to the Company and each of the Selling
Stockholders within 30 days after the date of this Agreement; PROVIDED, HOWEVER,
that if the Underwriters exercise their right to purchase Additional Securities
in part on more than one occasion, the Underwriters shall pay all of the
incremental expenses of the Company associated with any closing after the first
exercise of such right. You shall give any such notice on behalf of the
Underwriters and such notice shall specify the aggregate number of Additional
Shares and Additional Warrants to be purchased pursuant to such exercise and the
date for payment and delivery thereof, which date shall be a business day (i) no
earlier than two business days
2
<PAGE>
after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business
days after such notice has been given. If any Additional Securities are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholders the number of Additional Shares or Additional
Warrants to be sold by each Selling Stockholder (subject to such adjustments
to eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Securities to be purchased from
the Selling Stockholders as the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule I bears to the total number of Firm
Securities. The maximum number of Additional Shares or Additional Warrants
to be sold by each Selling Stockholder is set forth opposite such Selling
Stockholder's name on Schedule II hereto, and if less than the maximum number
of Additional Securities are to be purchased, the number of Additional
Securities to be purchased shall be allocated pro rata among the Selling
Stockholders in accordance with the number of additional Securities set forth
opposite such Selling Stockholder's name on Schedule II hereto.
The Company and each Selling Stockholder hereby agrees not to (i)
offer, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
all or a portion of the economic consequences associated with the ownership of
any Common Stock (regardless of whether any of the transactions described in
clause (i) or (ii) is to be settled by the delivery of Common Stock, or such
other securities, in cash or otherwise), except to the Underwriters pursuant to
this Agreement, for a period of 90 days after the date of the Prospectus without
the prior written consent of Donaldson, Lufkin & Jenrette Securities
Corporation. Notwithstanding the foregoing, during such period (i) each
stockholder of the Company may transfer shares of Common Stock and any
securities convertible into or exercisable or exchangeable for Common Stock to
one or more affiliates or one or more members of such stockholder's immediate
family, or a trust, the sole beneficiaries of which are members of such
stockholder's immediate family, if the transferee agrees in writing to be bound
by the terms of such lock-up agreement, (ii) the Company may grant stock options
pursuant to the Company's existing stock option plan, (iii) the Company may
issue shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and (iv) each
stockholder of the Company may sell shares of Common Stock pursuant to the
cashless "net exercise" provisions of any option or warrant outstanding on the
date hereof. The Company also agrees not to file any registration statement
with respect to any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock for a period of 90 days after the
date of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation. In addition, each Selling Stockholder agrees
that, for a period of 90 days after the date of the Prospectus, without the
prior written consent of Donaldson, Lufkin & Jenrette Securities Corporation, it
will not make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock. The Company shall, prior to or
concurrently with the execution of this Agreement, deliver an agreement executed
by (i) each Selling Stockholder, (ii) each of the directors, alternate directors
and officers of the Company who is not a Selling Stockholder and (iii) each
stockholder listed on Annex I hereto to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 90 days after the date of the Prospectus, without the prior written
consent of Donaldson, Lufkin & Jenrette Corporation, (A) engage in any of the
transactions described in the first sentence of this paragraph (subject to the
qualifications thereto described in the second sentence of this paragraph) or
(B) make any demand for, or exercise any right with respect to, the registration
of any shares of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock.
3
<PAGE>
SECTION 3. TERMS OF PUBLIC OFFERING. The Selling Stockholders are
advised by you that the Underwriters propose (i) to make a public offering of
their respective portions of the Shares as soon after the execution and
delivery of this Agreement as in your judgment is advisable and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
Each Underwriter agrees that it will not knowingly sell any of the Shares to
any (i) corporation, joint stock company or association organized under the
laws of a country other than the United States, (ii) individual who is a
non-U.S citizen, (iii) mutual fund organized outside of the United States,
(iv) corporation, joint stock company or association controlled by a non-U.S.
citizen, (v) partnership that has a non-U.S. citizen as its general partner
or that has a general partner controlled by a non-U.S. citizen, (vi) limited
liability company that has a non-U.S. citizen as one of its managing members,
(vii) trust that has a non-U.S. citizen as a trustee, or (viii) other entity
controlled by non-U.S. citizens; PROVIDED, HOWEVER, that the Underwriters
shall be under no duty to investigate the citizenship, foreign ownership or
control or any other matter with respect to the nature of any purchaser of
the Shares.
SECTION 4. DELIVERY AND PAYMENT. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. On the
Closing Date and any Option Closing Date, simultaneously with (i) the purchase
by the Underwriters of Firm Warrants or Additional Warrants and (ii) the payment
by the Underwriters to the Company of the exercise price of $0.06439 per share
(the "WARRANT EXERCISE PRICE"), the Underwriters will be deemed to have
exercised such Firm Warrants or Additional Warrants and the Company will
immediately issue to the Underwriters the related Firm Warrant Shares or
Additional Warrant Shares, as the case may be. The Shares shall be delivered by
or on behalf of the Selling Stockholders, with any transfer taxes thereon duly
paid by the respective Selling Stockholders, to Donaldson, Lufkin & Jenrette
Securities Corporation through the facilities of The Depository Trust Company
("DTC"), for the respective accounts of the several Underwriters, against
payment to the Selling Stockholders of the Share Purchase Price therefor and the
Warrant Purchase Price therefor, as applicable, and payment to the Company of
the Warrant Exercise Price therefor, by wire transfer of Federal or other funds
immediately available in New York City. The certificates representing the
Shares shall be made available for inspection not later than 9:30 A.M., New York
City time, on the business day prior to the Closing Date or the applicable
Option Closing Date, as the case may be, at the office of DTC or its designated
custodian (the "DESIGNATED OFFICE"). The time and date of delivery and payment
for the Firm Securities and the Firm Warrant Shares shall be 9:00 A.M., New York
City time, on February __, 1998 or such other time on the same or such other
date as Donaldson, Lufkin & Jenrette Securities Corporation, the Company and the
Selling Stockholders shall agree in writing. The time and date of delivery and
payment for the Firm Securities and the Firm Warrant Shares are herein referred
to as the "CLOSING DATE." The time and date of delivery and payment for any
Additional Securities and Additional Warrant Shares to be purchased by the
Underwriters shall be 9:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 or such other
time on the same or such other date as Donaldson, Lufkin & Jenrette Securities
Corporation, the Company and the Selling Stockholders shall agree in writing.
The time and date of delivery and payment for any Additional Securities and
Additional Warrant Shares are herein referred to as the "OPTION CLOSING DATE."
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of O'Melveny & Myers LLP, 1999 Avenue of the
Stars, Los Angeles, California 90067 and the Shares shall be delivered at the
Designated Office, all on the Closing Date or such Option Closing Date, as the
case may be.
4
<PAGE>
SECTION 5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
(b) To furnish to you, without charge, seven signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits and documents incorporated therein by reference,
and to furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each amendment
to it, without exhibits but including documents incorporated therein by
reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
reasonably satisfactory to you, and to file the Prospectus in such form with
the Commission within the applicable period specified in Rule 424(b) under the
Act; during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been advised
or to which you shall reasonably object after being so advised; and, during such
period, to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or supplement
to the Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus and any documents incorporated therein by reference
(and of any amendment or supplement to the Prospectus) as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in light of the circumstances when it is so delivered, be
misleading, or
5
<PAGE>
so that the Prospectus will comply with applicable law, and to furnish to
each Underwriter and to any dealer as many copies thereof as such Underwriter
or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; PROVIDED, HOWEVER, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Shares, in
any jurisdiction in which it is not now so subject.
(g) To make generally available to its stockholders as soon as reasonably
practicable an earnings statement covering the twelve-month period ending March
31, 1999 that shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) During the period of five years after the date of this Agreement, to
mail as soon as reasonably practicable after the end of each fiscal year to the
record holders of its Common Stock a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
stockholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent certified public accountants.
(j) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company and,
except as otherwise provided in this Agreement, the Selling Stockholders under
this Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel, the Company's accountants and the Perenchio Selling
Stockholders' counsel in connection with the registration and delivery of the
Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters (other than any transfer
or other taxes payable thereon, which shall be paid by the Selling
Stockholders), (iii) all costs of printing or producing this Agreement and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Shares, (iv) all expenses in connection with the registration or
qualification of the Shares for offer and sale under the
6
<PAGE>
securities or Blue Sky laws of the several states and all costs of printing
or producing any Preliminary and Supplemental Blue Sky Memoranda in
connection therewith (including the filing fees and fees and disbursements of
counsel for the Underwriters in connection with such registration or
qualification and memoranda relating thereto), (v) the filing fees in
connection with the review and clearance of the offering of the Shares by the
National Association of Securities Dealers, Inc., (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar, custodian and/or depositary, and (viii) all other
costs and expenses incident to the performance of the obligations of the
Company and the Selling Stockholders hereunder for which provision is not
otherwise made in this Section. The Selling Stockholders will pay (directly
or by reimbursement) all fees and expenses incident to the performance of
their obligations under this Agreement which are not otherwise specifically
provided for herein, including but not limited to (i) any fees and expenses
of counsel for such Selling Stockholders, except for fees and expenses of
O'Melveny & Myers LLP, as counsel to the Perenchio Selling Stockholders, and
(ii) all expenses and taxes incident to the sale and delivery of the Shares
and Warrants to be sold by such Selling Stockholders to the Underwriters
hereunder. The Selling Stockholders will also be responsible for the
underwriting discounts and commissions with respect to the Shares and
Warrants to be sold by them. The provisions of this Section shall not
supersede or otherwise affect any agreement that the Company and the Selling
Stockholders may otherwise have for allocation of such expenses among
themselves. Except as provided in this Section 5(j) and Sections 8 and 10
hereof, the Underwriters shall pay all of their own expenses, including the
fees and disbursements of their counsel.
(k) To use its best efforts to maintain the inclusion of the Common Stock
(including the Shares) on the New York Stock Exchange for a period of three
years after the effective date of the Registration Statement.
(l) To consent to and recognize the purchase and exercise of all of the
Firm Warrants and Additional Warrants by the Underwriters and, upon payment of
the purchase price for the Firm Warrants and any Additional Warrants to the
Davila Selling Stockholders, to deem any and all requirements for the transfer
of such Warrants to be satisfied.
(m) Simultaneously with the purchase by the Underwriters from the Davila
Selling Stockholders of, and payment for, the Firm Warrants and any Additional
Warrants and the payment to the Company of the Warrant Exercise Price by the
Underwriters, the Company will issue the Firm Warrant Shares and any Additional
Warrant Shares, respectively, all as contemplated by this Agreement
notwithstanding any contrary provision contained in the Warrants, the
enforcement of which the Company hereby waives.
(n) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Firm Securities and the
Additional Securities.
(o) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
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SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement)
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments thereto,
when they become effective (A) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) will comply in
all material respects with the Act and (v) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use
therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) Each of the Company and its corporate subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole.
Each of the Company's subsidiaries that is a partnership is a duly formed
general or limited partnership, as the case may be, and is validly existing as a
general or limited partnership, as the case may be, under the laws of the state
of its organization, with full partnership power
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and authority to carry on its business as it is currently being conducted and
to own, lease and operate its properties, and each is duly qualified and is
in good standing as a foreign partnership authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing
of property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company (including
the Firm Shares and Additional Shares to be sold by the Perenchio Selling
Stockholders) have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights. The Firm
Warrants and Additional Warrants to be sold by the Davila Selling Stockholders
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights. The Firm Warrant Shares
and the Additional Warrant Shares to be issued upon the Underwriters' exercise
of the Firm Warrants and Additional Warrants pursuant to this Agreement have
been duly authorized and, when issued and delivered to the Underwriters against
payment of the Warrant Exercise Price therefor in accordance with the terms of
this Agreement, will be validly issued and fully paid, non-assessable and not
subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's corporate subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and all of the outstanding partnership
interests in each of the Company's subsidiaries which is a partnership have been
duly authorized by such partnership, and all of such shares of capital stock and
partnership interests are owned directly or indirectly of record by the Company,
free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature, except for those arising under the Bank Facility (as
defined in the Prospectus).
(h) The authorized capital stock of the Company and the Warrants conform
as to legal matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or other governing document or in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, which
violation or default would have a material adverse affect on the business,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby (including, without
limitation, the purchase and exercise by the Underwriters of the Firm Warrants
and Additional Warrants) will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the Act and
the securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws or other
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governing documents of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
(including, without limitation, the Warrants) to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, except for such
conflicts, breaches or defaults which, singly or in the aggregate, would not
have a material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole,
(iii) violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency
having jurisdiction over the Company, any of its subsidiaries or their
respective property or (iv) result in the suspension, termination or
revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or any other impairment of the rights of the holder of any
such Authorization.
(k) Except as otherwise set forth in the Prospectus, there are no legal or
governmental proceedings pending, or to the best of the Company's knowledge,
threatened or contemplated, to which the Company or any of its subsidiaries is
or could be a party or to which any of their respective property is or could be
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described; nor are there any contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed or incorporated by reference therein as required or
otherwise permitted.
(l) Each of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. Each such Authorization is valid and in full
force and effect and each of the Company and its subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(m) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any provisions
of the Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a material adverse effect on the business, financial condition or
results of operation of the Company and its subsidiaries, taken as a whole.
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(n) There are no costs or liabilities associated with any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related constraints
on operating activities and any potential liabilities to third parties under
Environmental Laws which would, singly or in the aggregate, have a material
adverse effect on the business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole.
(o) This Agreement has been duly authorized, executed and delivered by the
Company.
(p) Arthur Andersen LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(q) The consolidated financial statements included in or incorporated by
reference into the Registration Statement and the Prospectus (and any amendment
or supplement thereto), together with related schedules and notes, present
fairly the consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the supporting
schedules, if any, included in the Registration Statement present fairly in
accordance with generally accepted accounting principles the information
required to be stated therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(r) The PRO FORMA financial statements of the Company and its subsidiaries
and the related notes thereto set forth in the Registration Statement and the
Prospectus (and any supplement or amendment thereto) have been prepared on a
basis consistent with the historical financial statements of the Company and its
subsidiaries, give effect to the assumptions used in the preparation thereof on
a reasonable basis and in good faith and present fairly in all material respects
the historical and proposed transactions contemplated by the Registration
Statement and the Prospectus. Such PRO FORMA financial statements have been
prepared in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission. The other PRO FORMA financial and
statistical information and data set forth in the Registration Statement and the
Prospectus (and any supplement or amendment thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with the PRO
FORMA financial statements.
(s) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be, an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(t) Except as set forth in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement.
(u) Since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
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a prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company or any of
its subsidiaries and (iii) neither the Company nor any of its subsidiaries
has incurred any material liability or obligation, direct or contingent.
(v) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(w) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company or (ii) any change in the outlook for any rating of the Company or
any securities of the Company.
(x) Except as otherwise set forth in the Prospectus or such as are not
material to the business, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, the Company and each of its
subsidiaries has good and marketable title, free and clear of all liens, claims,
encumbrances and restrictions (except liens, claims, encumbrances or
restrictions arising under the Bank Facility and liens for taxes not yet due and
payable), to all property and assets described in the Registration Statement as
being owned by it. All leases to which the Company or any of its subsidiaries
is a party are valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any of them
is a party as lessee with such exceptions as do not materially interfere with
the use made by the Company or such subsidiary.
(y) The Company and each of its subsidiaries maintains insurance of the
types and in the amounts generally deemed adequate for its business.
(z) There is (i) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries or, to the best knowledge of the
Company, threatened against any of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or more significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened against any of
them, and (ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best knowledge
of the Company, threatened against it or any of its subsidiaries except for such
actions specified in clause (i) or (ii) above, which, singly or in the aggregate
could not reasonably be expected to have a material adverse effect on the
business, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(aa) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(bb) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(cc) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed therein by
Item 404 of Regulation S-K of the Commission.
(dd) The Company has filed a registration statement pursuant to Section
12(g) of the Exchange Act to register the Common Stock and has listed the
Shares, subject to official notice of issuance, on the New York Stock Exchange.
(ee) The Company and its subsidiaries possess, or possess the right to use,
the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names (collectively, "INTELLECTUAL PROPERTY") presently employed by them
in connection with the businesses now operated by them, and neither the Company
nor any of the its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in the business, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole. The use of such Intellectual Property in connection with the business
and operations of the Company and its subsidiaries does not, to the Company's
knowledge, infringe in any material respect on the rights of any person.
(ff) The Firm Warrants and the Additional Warrants are duly authorized,
executed and delivered by the Company and constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors' rights generally, and by general
principles of equity, regardless of whether considered in a proceeding in equity
or at law. The sale of the Warrants to the Underwriters pursuant to the terms
of this Agreement does not violate any provision thereof and upon such sale the
Warrants will be fully exercisable by the Underwriters as contemplated herein.
(gg) Upon the Underwriters' purchase of the Firm Warrants and any
Additional Warrants and payment to the Company of the Warrant Exercise Price
pursuant to this Agreement, all of the requirements (whether under the Warrants
or otherwise) with respect to the Underwriters' exercise of the Firm Warrants
and any Additional Warrants for the Firm Warrant Shares and Additional Warrant
Shares, respectively, will be satisfied, and the Company will be unconditionally
obligated to immediately issue duly and validly authorized and issued, fully
paid and nonassessable shares of Common Stock in respect thereof.
(hh) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
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SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
(a) Each of The Jerry Perenchio Living Trust dated April 16, 1987, as
amended, and Margaret Perenchio (collectively, the "PERENCHIO SELLING
STOCKHOLDERS") represents and warrants to each Underwriter that:
(i) Such Selling Stockholder is the owner of the Firm Shares and
Additional Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has, and on the Closing Date will have, good and clear title
to such Firm Shares and Additional Shares, free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever, except for restrictions on transfer, encumbrances or claims
pursuant to that certain Stock Transfer Agreement dated December 5, 1996
between A. Jerrold Perenchio and Margaret McHugh Perenchio, that certain
Irrevocable Proxy dated December 5, 1996 from Margaret McHugh Perenchio to
A. Jerrold Perenchio, and the Custody Agreement and Power of Attorney (each
as defined below).
(ii) Such Selling Stockholder has, and on the Closing Date will have,
all necessary trust power and authority or legal capacity, as the case may
be, to enter into this Agreement, the Custody Agreement signed by such
Selling Stockholder and The Bank of New York, as Custodian, relating to the
deposit of the Firm Shares and Additional Shares to be sold by such Selling
Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such
Selling Stockholder appointing certain individuals as such Selling
Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth
therein, relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY")
and to sell, assign, transfer and deliver the Firm Shares and Additional
Shares to be sold by such Selling Stockholder in the manner provided herein
and therein.
(iii) This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder.
(iv) The Custody Agreement of such Selling Stockholder has been duly
executed and delivered by such Selling Stockholder and is a valid and
binding agreement of such Selling Stockholder, enforceable in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(v) The Power of Attorney of such Selling Stockholder has been duly
executed and delivered by such Selling Stockholder and is a valid and
binding instrument of such Selling Stockholder, enforceable in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Pursuant to such Power of Attorney, such Selling Stockholder has, among
other things, authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Stockholder's behalf this Agreement and any other
document that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and to
deliver the Firm Shares and Additional Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
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(vi) Upon delivery of and payment for the Firm Shares and Additional
Shares to be sold by such Selling Stockholder pursuant to this Agreement,
good and clear title to such Firm Shares and Additional Shares will pass to
the Underwriters, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever.
(vii) The execution, delivery and performance of this Agreement
and the Custody Agreement and Power of Attorney of such Selling Stockholder
by or on behalf of such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and the consummation
of the transactions contemplated hereby and thereby will not (i) require
any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states), (ii)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the organizational documents of such Selling
Stockholder, if applicable, any indenture, loan agreement, mortgage, lease
or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such Selling
Stockholder is bound, except for such conflicts, breaches or defaults as
would not have a material adverse effect on the Shares or the transactions
contemplated hereby or (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling
Stockholder or any property of such Selling Stockholder.
(viii) The information in the Registration Statement under the
caption "Principal and Selling Stockholders" which specifically relates to
such Selling Stockholder does not, and will not on the Closing Date,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(ix) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by such
Selling Stockholder to the Underwriters as to the matters covered thereby.
In addition to the foregoing, A. Jerrold Perenchio also represents and
warrants to each Underwriter that, to the best of his knowledge, the
Registration Statement and Prospectus does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(b) Each of Univision Special Partnership II, L.P. and Univision Special
Partnership III, L.P. (collectively, the "DAVILA SELLING STOCKHOLDERS")
represents and warrants to each Underwriter that:
(i) Such Selling Stockholder is the owner of the Warrants to be sold
by such Selling Stockholder pursuant to this Agreement and has, and on the
Closing Date will have, good and clear title to such Warrants, free of all
restrictions on transfer, liens, encumbrances, security interests, equities
and claims whatsoever.
(ii) Such Selling Stockholder has, and on the Closing Date will have,
all necessary partnership power and authority to enter into this Agreement,
the Custody Agreement signed by such Selling Stockholder and The Bank of
New York, as Custodian, relating to the deposit of the Shares to be sold by
such Selling Stockholder and the Power of Attorney of such Selling
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Stockholder appointing certain individuals as such Selling Stockholder's
attorneys-in-fact to the extent set forth therein, relating to the
transactions contemplated hereby and by the Registration Statement and the
Custody Agreement and to sell, assign, transfer and deliver the Warrants to
be sold by such Selling Stockholder in the manner provided herein and
therein.
(iii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(iv) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally, and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(v) The Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally, and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
Pursuant to such Power of Attorney, such Selling Stockholder has, among
other things, authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Stockholder's behalf this Agreement and any other
document that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and to
deliver the Warrants to be sold by such Selling Stockholder pursuant to
this Agreement.
(vi) Upon delivery of and payment for the Warrants to be sold by such
Selling Stockholder pursuant to this Agreement, good and clear title to
such Warrants will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever. Upon exercise of the Firm Warrants and any Additional
Warrants, the Firm Warrant Shares and the Additional Warrant Shares will be
issued free and clear of all liens, encumbrances, security interests,
equities or claims resulting from any action taken by such Selling
Stockholder.
(vii) The execution, delivery and performance of this Agreement
and the Custody Agreement and Power of Attorney of such Selling Stockholder
by or on behalf of such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and the consummation
of the transactions contemplated hereby and thereby will not (i) require
any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states), (ii)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the organizational documents of such Selling
Stockholder, or any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any property of such Selling Stockholder
is bound, except for such conflicts, breaches or defaults as would not have
a material adverse effect on the Warrants, the Shares or the transactions
contemplated hereby or (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree
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of any court or any governmental body or agency having jurisdiction over
such Selling Stockholder or any property of such Selling Stockholder.
(viii) Such Selling Stockholder has complied with all provisions of
the Warrants in order to sell, assign, transfer and deliver the Warrants
sold by such Selling Stockholder hereunder.
(ix) The information in the Registration Statement under the caption
"Principal and Selling Stockholders" which specifically relates to such
Selling Stockholder does not, and will not on the Closing Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(x) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by such
Selling Stockholder to the Underwriters as to the matters covered thereby.
SECTION 8. INDEMNIFICATION.
(a) The Company and the Selling Stockholders, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; PROVIDED, HOWEVER, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus (as then
amended or supplemented, provided by the Company to the such Underwriter in the
requisite quantity and on a timely basis to permit proper delivery on or prior
to the Closing Date) to the person asserting any losses, claims, damages and
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in such Prospectus and such Prospectus was required by law to
be delivered at or prior to the written confirmation of sale to such person.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to this Section 8(a) shall be limited to an amount equal to
the total proceeds (before deducting underwriting discounts and commissions and
expenses) received by such Selling Stockholder from the Underwriters for the
sale of the Shares sold by such Selling Stockholder hereunder. The Company and
the Selling Stockholders may enter into other agreements amongst themselves with
respect to the indemnity obligations hereunder, PROVIDED that such agreements
shall not affect the indemnification obligations of the Company and the Selling
Stockholders to the several Underwriters under this Agreement.
Notwithstanding the foregoing, the Underwriters agree not to collect
any payment (whether on a judgment or otherwise) from any Selling Stockholder
pursuant to this Section 8(a) until the earlier of a
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"Bankruptcy Event" with respect to the Company or such Selling Stockholder,
PROVIDED (i) the Underwriters may bring an action or proceeding against any
Selling Stockholder concurrently with or following an action or proceeding
against the Company and (ii) the limitation in this sentence shall not apply
to the extent the indemnification is with respect to information relating to
such Selling Stockholder or the indemnification is unavailable against the
Company.
For the purposes of this Section 8(a), a "BANKRUPTCY EVENT" shall
have occurred with respect to the Company or a Selling Stockholder when (i)
it has commenced a voluntary case or proceeding under any Federal or state
bankruptcy, insolvency, reorganization or similar law ("BANKRUPTCY LAW") or
any other proceeding to be adjudicated a bankrupt or insolvent, (ii) it has
consented to entry of a decree or order for relief in an involuntary case or
proceeding under any Bankruptcy Law or to the commencement of any such case
or proceeding against it, (iii) it has had entered against it any decree or
order for relief in any such involuntary cased or proceeding or adjudging it
a bankrupt or insolvent or appointing a custodian, receiver or similar
official or it or any substantial part of its property or (iv) it has made an
assignment for the benefit of its creditors or (v) it has taken any corporate
action in furtherance of any of the foregoing actions.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(including, without limitation, the Trustee of the members of the Davila Selling
Stockholders) to the same extent as the foregoing indemnity from the Company and
the Selling Stockholders to such Underwriter but only with reference to
information relating to such Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the fees
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and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act, (ii) the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and all persons,
if any, who control the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all Selling Stockholders and all persons,
if any, who control any Selling Stockholder within the meaning of either such
Section, and all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and
such control persons of any Underwriters, such firm shall be designated in
writing by Donaldson, Lufkin & Jenrette Securities Corporation. In the case
of any such separate firm for the Company and such directors, officers and
control persons of the Company, such firm shall be designated in writing by
the Company. In the case of any such separate firm for the Selling
Stockholders and such control persons of any Selling Stockholders, such firm
shall be designated in writing by the Attorneys. The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action effected with its written consent. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement or compromise of, or consent to the entry of judgment
with respect to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or contribution
may be or could have been sought hereunder by the indemnified party, unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability on claims that are or
could have been the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total proceeds from the
offering (after deducting underwriting discounts and commissions, but before
deducting expenses) received by the Selling Stockholders, and the total
underwriting discounts and commissions received by the Underwriters, bear to the
total price to the public of the Shares, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even
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if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses incurred by such indemnified
party in connection with investigating or defending any matter, including any
action, that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8(d) are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates _________________,
_____________, as its authorized agent, upon which process may be served in any
action which may be instituted in any state or federal court in the State of New
York by any Underwriter or any person controlling any Underwriter asserting a
claim for indemnification or contribution under or pursuant to this Section 8,
and each Selling Stockholder will accept the jurisdiction of such court in such
action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue. A copy of any such
process shall be sent or given to such Selling Stockholder, at the address for
notices specified in Section 12 hereof.
SECTION 9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Securities under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by A. Jerrold Perenchio and George Blank, in their
capacities as Chief Executive Officer and Chief Financial Officer of the
Company, respectively, confirming the matters set forth in Sections 6(u), 9(a)
and 9(b) and that the Company has complied with all of the agreements and
satisfied all of the conditions herein contained and required to be complied
with or satisfied by the Company on or prior to the Closing Date.
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(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received on the Closing Date a certificate dated the Closing Date from each
Selling Stockholder to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by
such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of O'Melveny &
Myers LLP, counsel to the Company and the Perenchio Selling Stockholders, to the
effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated or organized, as applicable, and each is validly existing and
in good standing under the laws of its state of incorporation or
organization, with corporate or other organizational power to own its
properties and assets and to carry on its business as described in the
Registration Statement.
(ii) The outstanding shares of the capital stock of each of the
Company's corporate subsidiaries have been duly authorized by all necessary
corporate action on the part of such corporation, are validly issued,
fully-paid and nonassessable, and are owned directly or indirectly of
record by the Company, and the outstanding partnership interests in each
subsidiary of the Company that is a partnership have been duly authorized
by such partnership and are owned directly or indirectly of record by the
Company.
(iii) The outstanding shares of the capital stock and warrants of
the Company (including the Firm Shares, Additional Shares and Warrants to
be sold by the Selling Stockholders) have been duly authorized by all
necessary corporate action on the part of the Company and are validly
issued, fully paid and nonassessable. The Firm Warrant Shares and
Additional Warrant Shares have been duly authorized by all necessary
corporate action on the part of the Company and, upon payment for and
delivery of the Firm Warrant Shares and Additional Warrant Shares in
accordance with this Agreement, the Firm Warrant Shares and Additional
Warrant Shares will be validly issued, fully paid and nonassessable.
(iv) Holders of the capital stock of the Company are not entitled to
any preemptive right to subscribe to any additional shares of the Company's
capital stock under the Company's Restated Certificate of Incorporation or
By-laws, any New York, California or Delaware statute or regulation or any
of the Filed Agreements (as hereinafter defined).
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(v) The Firm Warrants and the Additional Warrants are duly
authorized, executed and delivered by the Company and constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and by general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(vi) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Company and this Agreement has been duly executed and delivered by the
Company.
(vii) The Registration Statement has been declared effective under
the Act and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued or threatened
by the Commission.
(viii) The statements in the Prospectus under the captions "Risk
Factors--Potential Competition with Other Broadcasters Using Televisa
Programming," "Risk Factors--Mandatory Redemption of Class A Common Stock,"
"Risk Factors--FCC Regulation," "Risk Factors--Concentration of Share
Ownership and Control of Company," "Certain Transactions," "Description of
Capital Stock," and "Underwriting" in the Prospectus and Item 15 of Part II
of the Registration Statement, insofar as such statements summarize the
Restated Certificate of Incorporation, By-laws, Program License Agreements,
International Program Rights Agreement, Participation Agreement, Warrants,
Registration Rights Agreement and Indemnification Agreements (each as
defined in the Registration Statement) or the provisions of any statute or
regulation referred to therein, fairly present the information required by
Form S-3.
(ix) No order, consent, permit or approval of any New York,
California, Delaware or federal governmental authority that such counsel
has, in the exercise of customary professional diligence, recognized as
applicable to the Company, its subsidiaries or transactions of the type
contemplated by this Agreement is required on the part of the Company for
the execution and delivery of, and performance of its obligations under,
this Agreement. The Company's execution and delivery of, and performance
of its obligations under, this Agreement do not and will not (A) violate
the Company's charter or bylaws, (B) violate, breach, or result in a
default under, any existing obligation of or restriction on the Company or
any of its subsidiaries under any agreement filed as an Exhibit to the
Registration Statement or incorporated by reference therein (the "FILED
AGREEMENTS"), or (C) breach or otherwise violate any existing obligation of
or restriction on the Company or any of its subsidiaries under any order,
judgment or decree of any New York, Delaware or federal court or
governmental authority binding on the Company or its subsidiaries and which
has been identified by the Company on a certificate provided to such
counsel. The execution and delivery by the Company of, and performance of
its obligations under, this Agreement do not violate any New York,
California, Delaware or federal statute or regulation that such counsel
has, in the exercise of customary professional diligence, recognized as
applicable to the Company or any of its subsidiaries or the transactions of
the type contemplated by this Agreement, except that, such counsel
expresses no opinion regarding any federal securities laws or Blue Sky or
state securities laws except as otherwise expressly stated herein.
(x) Such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their
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respective property is subject which is required to be described in the
Registration Statement or the Prospectus and is not so described, or of any
contract or other document of a character required to be filed as an
exhibit to the Registration Statement or incorporated by reference therein
which is not filed or incorporated by reference therein as required.
(xi) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(xii) The Registration Statement, on the date it was filed,
appeared on its face to comply in all material respects with the
requirements as to form for registration statements on Form S-3 under the
Act and the related rules and regulations in effect on the date of filing,
except that such counsel need express no opinion concerning the financial
statements and other financial information contained or incorporated by
reference therein. Each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus (except for financial
statements and other financial data included therein as to which no opinion
need be expressed) on the respective dates that they were filed appeared on
their face to comply in all material respects with the requirements as to
form for reports on Form 10-K and Form 10-Q, as the case may be.
(xiii) To the best of such counsel's knowledge, no holder of any
security of the Company has any right to require registration of shares of
Common Stock or any other security of the Company other than as described
in the Prospectus.
(xiv) The subsidiaries of the Company identified on a schedule to
such opinion hold the Federal Communications Commission ("FCC") licenses,
permits and authorizations specified on such schedule (the "FCC LICENSES").
(xv) The FCC Licenses are in full force and effect.
(xvi) The FCC Licenses include all material FCC licenses, permits
and authorizations necessary for the Company's respective subsidiaries
identified on the above-referenced schedule to such opinion to operate
television broadcast stations of the type indicated on the respective
channels in the communities of license listed on such schedule.
(xvii) There are no necessary material consents, approvals and
authorizations required under the Communications Act of 1934, as amended,
required from the FCC for the offering and sale of the Shares to occur.
(xviii) Based solely upon a review of the records in the public
reference rooms of the FCC available for inspection during the two weeks
immediately preceding the Closing Date, appropriate files of this firm,
certificates of officers or other representatives of the Company or its
subsidiaries, and an inquiry of lawyers in such firm who have substantial
responsibility for the Company's legal matters handled by such firm, such
counsel confirms that: (A) there is no proceeding (including any
rulemaking proceeding), complaint or investigation against the Company or
any of its subsidiaries or in respect of the station licenses or any of the
FCC Licenses pending or threatened before the FCC (including any pending
judicial review of such an action by the FCC) with respect to which the
outcome, if determined adversely to the Company or any of its subsidiaries,
would have a material adverse effect on the operations of the Company and
its subsidiaries (except for proceedings affecting the television industry
generally to which neither the
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Company nor any of its subsidiaries is a specific party); and (B) neither
the Company nor any of its subsidiaries has been the subject of any final
adverse order, decree or ruling of the FCC (including any notice of
forfeiture that has been paid) since the last renewal of the FCC Licenses
which had a material adverse effect on the operations of the Company and
its subsidiaries.
(xix) The Company has confirmed to such counsel that, to the best
of its knowledge, upon consummation of the offering and sale of the Shares
contemplated hereby, the only equity interests in the Company that will be
owned or voted, directly or indirectly, by aliens, entities organized under
the laws of foreign governments, or the representatives of either (within
the meaning of the Communications Act of 1934, as amended, and the rules,
regulations, written policies and decisions of the FCC (collectively, the
"COMMUNICATIONS ACT")) will be (A) those shares of Class T Common Stock
owned by Satellite Company LLC and Univision Special Partnership II, L.P.,
(B) those shares of Class V Common Stock owned by Venevision International,
Ltd., Dennevar B.V., Bravo Enterprises, Inc. and Univision Special
Partnership III, L.P., and (C) those shares of Class A Common Stock owned
by First International Production. Based upon such confirmation, upon
consummation of the offering and sale of the Shares, the Company will
comply with Section 310(b) of the Communications Act, with respect to the
collective equity interests in the Company owned or voted, directly or
indirectly, by aliens, entities organized under the laws of foreign
governments, or the representatives of either.
(xx) The Jerry Perenchio Living Trust dated April 16, 1987, as
amended, has all necessary trust power and authority to enter into this
Agreement and the Custody Agreement and the Power of Attorney of such
Perenchio Selling Stockholder and to sell, assign, transfer and deliver the
Firm Shares and Additional Shares to be sold by such Perenchio Selling
Stockholder in the manner provided herein and therein. This Agreement has
been duly executed and delivered by each Perenchio Selling Stockholder.
(xxi) The Custody Agreement of each Perenchio Selling Stockholder
has been duly executed and delivered by such Perenchio Selling Stockholder
and is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally, and by general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
(xxii) The Power of Attorney of each Perenchio Selling Stockholder
has been duly executed and delivered by such Perenchio Selling Stockholder
and is a valid and binding instrument of such Perenchio Selling
Stockholder, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors' rights generally, and by general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
(xxiii) Upon payment for and delivery of the Firm Shares and
Additional Shares to be sold by each Perenchio Selling Stockholder to the
Underwriters in accordance with this Agreement, assuming the Underwriters
are acquiring such Shares in good faith without notice of any adverse
claim, the Underwriters will acquire such Shares free and clear of any
adverse claim.
(xxiv) No order, consent, permit or approval of any New York,
California, Delaware or federal governmental authority that such counsel
has, in the exercise of customary professional diligence, recognized as
applicable to the Perenchio Selling Stockholders or the transactions of the
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<PAGE>
type contemplated by this Agreement, the Custody Agreement and the Power of
Attorney is required on the part of the Perenchio Selling Stockholders for
the execution and delivery of, and performance of their respective
obligations under, this Agreement, the Custody Agreement and the Power of
Attorney. Each Perenchio Stockholder's execution and delivery of, and
performance of their respective obligations under, this Agreement, the
Custody Agreement and the Power of Attorney do not and will not (A)
violate, breach, or result in a default under, any existing obligation of
or restriction on such Perenchio Selling Stockholder under any indenture,
loan agreement, mortgage, lease or other agreement or instrument which such
Perenchio Selling Stockholder is a party or by which the property of such
Perenchio Selling Stockholder is bound which has been identified as being
material to such Perenchio Selling Stockholder on a certificate provided to
such counsel or (B) breach or otherwise violate any existing obligation of
or restriction on such Perenchio Selling Stockholder under any order,
judgment or decree of any New York, Delaware or federal court or
governmental authority binding on such Perenchio Selling Stockholder and
which has been identified by such Perenchio Selling Stockholder on a
certificate provided to such counsel. The execution and delivery by each
Perenchio Selling Stockholder of, and performance of their respective
obligations under, this Agreement, the Custody Agreement and the Power of
Attorney do not violate any New York, California, Delaware or federal
statute or regulation that such counsel have, in the exercise of customary
professional diligence, recognized as applicable to such Perenchio Selling
Stockholder or transactions of the type contemplated by this Agreement, the
Custody Agreement and the Power of Attorney except that, such counsel need
express no opinion regarding any federal securities laws or Blue Sky or
state securities laws except as otherwise expressly stated herein.
In addition, such opinion shall contain a statement to the effect that
in connection with such counsel's participation in the preparation of the
Registration Statement and the Prospectus, they have not independently verified
the accuracy, completeness or fairness of the statements contained therein, and
the limitations inherent in the examination made by such counsel and the
knowledge available to such counsel are such that such counsel is unable to
assume, and does not assume, any responsibility for such accuracy, completeness
or fairness, except as otherwise specifically stated in Section 9(f)(viii)
above. However, on the basis of such counsel's review and participation in
conferences in connection with the preparation of the Registration Statement and
the Prospectus, and relying as to materiality to a large extent upon opinions of
officers and other representatives of the Company, such counsel does not believe
that the Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such counsel does not believe that the Prospectus on the date hereof contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Such
counsel need express no opinion or belief as to the financial statements and
other financial information contained in the Registration Statement or the
Prospectus.
The opinion of O'Melveny & Myers LLP described in this Section 9(f)
shall be rendered to you at the request of the Company and the Perenchio Selling
Stockholders and shall so state therein.
(g) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Fried,
Frank, Harris, Shriver & Jacobson, counsel to the Davila Selling Stockholders,
to the effect that:
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<PAGE>
(i) Each Davila Selling Stockholder has all necessary partnership
power and authority to enter into this Agreement and the Custody Agreement
and the Power of Attorney of such Davila Selling Stockholder and to sell,
assign, transfer and deliver the Warrants to be sold by such Davila Selling
Stockholder in the manner provided herein and therein. This Agreement has
been duly authorized, executed and delivered by each Davila Selling
Stockholder.
(ii) The Custody Agreement of each Davila Selling Stockholder has been
duly authorized, executed and delivered by such Davila Selling Stockholder
and is a valid and binding agreement of such Davila Selling Stockholder,
enforceable in accordance with its terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally, and by general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
(iii) The Power of Attorney of each Davila Selling Stockholder has
been duly authorized, executed and delivered by such Davila Selling
Stockholder and is a valid and binding instrument of such Davila Selling
Stockholder, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors' rights generally, and by general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
(iv) Upon payment for and delivery of the Warrants to be sold by each
Davila Selling Stockholder to the Underwriters in accordance with this
Agreement, assuming the Underwriters are acquiring such Warrants for value
in good faith without notice of any adverse claim (as such term is used in
Section 8-105 of the Uniform Commercial Code in effect in the State of New
York), the Underwriters will acquire such Warrants free and clear of any
adverse claim.
(v) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power of Attorney of each Davila Selling Stockholder
by such Davila Selling Stockholder, the compliance by such Davila Selling
Stockholder with all the provisions hereof and thereof and the consummation
of the transactions contemplated hereby and thereby will not (A) require
any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states and
except for waivers granted by the Company herein with respect to the
Warrants), (B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such
Davila Selling Stockholder or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Davila Selling
Stockholder is a party or by which any property of such Davila Selling
Stockholder is bound which has been identified as being material to such
Davila Selling Stockholder on a certificate provided to such counsel or (C)
violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency
having jurisdiction over such Davila Selling Stockholder or any property of
such Davila Selling Stockholder.
(vi) Nothing has come to the attention of such counsel which causes
them to believe that the statements pertaining to the Davila Selling
Stockholders in the Registration Statement under the caption "Principal and
Selling Stockholders" do not fairly and accurately present the information
set forth therein.
The opinion of Fried, Frank, Harris, Shriver & Jacobson described in
this Section 9(g) shall be rendered to you at the request of the Davila Selling
Stockholders and shall so state therein.
26
<PAGE>
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Latham & Watkins, counsel for the Underwriters, as to the
matters referred to in Sections 9(f)(iii), 9(f)(vi), and 9(f)(viii) (but only
with respect to the statements under the caption "Description of Capital Stock"
and "Underwriting"), and the penultimate paragraph of Section 9(f).
(i) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus.
(j) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) The Shares shall have been duly listed on the New York Stock Exchange,
subject to official notice of issuance.
(l) The Company and the Selling Stockholders shall not have failed on or
prior to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Selling Stockholders, as the case may be, on or prior to the Closing Date.
(m) You shall have received on the Closing Date, a certificate of each
Selling Stockholder who is not a U.S. Person (as defined under applicable U.S.
federal tax legislation) to the effect that such Selling Stockholder is not a
U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company and the Selling Stockholders if any of
the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in your judgment, is material and adverse and, in your judgment, makes it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus; (ii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market or limitation on prices for securities on any such
exchange or the Nasdaq National Market; (iii) the suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market;
(iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects, or will
27
<PAGE>
materially and adversely affect, the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you,
the Company and the Selling Stockholders for purchase of such Firm Shares are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase such Additional Shares or (ii) purchase not less than the number of
Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase on such date in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
SECTION 11. AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all expenses required to be paid by the
Selling Stockholders hereunder in connection with the transfer of the Shares or
Warrants to be sold by such Selling Stockholder to the Underwriters.
28
<PAGE>
(b) At any time during the period described in Section 5(d), if there is
any change in the information referred to in Section 7(a)(viii) or 7(b)(ix),
such Selling Stockholder will immediately notify you of such change.
(c) To do and perform all things to be done and performed by such Selling
Stockholder under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
SECTION 12. MISCELLANEOUS. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Univision Communications Inc., 1999 Avenue of the Stars, Suite 3050, Los
Angeles, California 90067, Attention: Robert V. Cahill, with a copy to Univision
Communications Inc., 6701 Center Drive West, 15th Floor, Los Angeles, California
90045, Attention: General Counsel, (ii) if to the Selling Stockholders, to
______________________, Attorney-in-Fact, c/o Univision Communications Inc.,
1999 Avenue of the Stars, Suite 3050, Los Angeles, California 90067, with a copy
to Davila Family LLC c/o Fried, Frank, Harris, Shriver & Jacobson, 1 New York
Plaza, New York, New York 10004, and (iii) if to any Underwriter or to you, to
you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue,
New York, New York 10172, Attention: Syndicate Department, or in any case to
such other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, any person
controlling any Underwriter, the Company, the officers or directors of the
Company, any person controlling the Company, any Selling Stockholder or any
person controlling such Selling Stockholder, (ii) acceptance of the Shares and
payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Selling Stockholder as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Selling Stockholders
agree, jointly and severally, to reimburse the several Underwriters for all
out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by them. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 5(j) hereof. The Selling Stockholders also agree, jointly and
severally, to reimburse the several Underwriters and any persons controlling any
of the Underwriters for any and all fees and expenses (including, without
limitation, the fees disbursements of counsel) reasonably incurred by them in
connection with enforcing their rights hereunder (including, without limitation,
pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, any controlling persons referred to herein, the
Company's directors and the Company's officers who sign the Registration
Statement and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
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<PAGE>
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
30
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
UNIVISION COMMUNICATIONS INC.
By
-------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE II
HERETO, ACTING SEVERALLY
By
Name:
Title: Attorney-in-fact
---------------------------------------
A. JERROLD PERENCHIO
S-1
<PAGE>
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BT ALEX BROWN INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
SCHRODER & CO. INC.
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------------
Name:
Title:
S-2
<PAGE>
SCHEDULE I
----------
Number of Firm Shares
to be Purchased (including
Shares Issuable Upon
Exercise of Firm Warrants
UNDERWRITERS TO BE PURCHASED)
- ------------ ---------------------------
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
BT Alex. Brown Incorporated
NationsBanc Montgomery Securities LLC
Schroder & Co. Inc.
----------
Total 21,000,000
Schedule 1
<PAGE>
SCHEDULE II
-----------
Selling Stockholders
--------------------
<TABLE>
<CAPTION>
Number of Number Maximum Maximum
Name Firm Shares of Number Number
of Stock Firm Warrants of Additional of Additional
Being Sold Being Sold Shares Warrants
----------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
PERENCHIO SELLING STOCKHOLDERS:
Jerry Perenchio Living Trust
dated April 16, 1987, as amended 20,000,000 -- 2,610,000 --
Margaret Perenchio 440,000 -- -- --
DAVILA SELLING STOCKHOLDERS:
Univision Special Partnership II, L.P. -- 280,000 -- 270,000
Univision Special Partnership III, L.P. -- 280,000 -- 270,000
----------- ------------- ------------- -------------
Total 20,440,000 560,000 2,610,000 540,000
</TABLE>
Schedule II
<PAGE>
ANNEX I
-------
Satellite Company LLC
Grupo Telesistema S.A. de C.V.
Venevision International Ltd.
Dennevar B.V.
Bravo Enterprises, Inc.
Rader Family Partnership, L.P.
Rader Living Trust dated September 9, 1994
Univision Special Partnership I, L.P.
Annex I
