Exhibit 10.2
Confidential – Execution
Version
For Settlement Purposes Only
MUTUAL RELEASE AND SETTLEMENT
AGREEMENT
This Mutual Release and Settlement
Agreement (“Agreement”) is entered into effective as of
January 22, 2009 (the “Effective Date”) between
Plaintiffs and Counterdefendants Televisa, S.A. de C.V. and Grupo
Televisa, S.A.B. (jointly, “Televisa”), on the one
hand, and Defendant and Counterclaimant Univision Communications
Inc. (“UCI”) and Counterclaimant Telefutura Network
(jointly, “Univision”), on the other hand. Televisa and
Univision are collectively referred to as the
“Parties.”
This Agreement is made with
reference to the following circumstances:
A. On May 9, 2005, Televisa,
S.A. de C.V. filed its Complaint and Demand for Jury Trial in the
United States District Court, Central District Court, entitled
Televisa, S.A. de C.V. v. Univision Communications Inc. ,
Case No. CV 05-3444 ABC (MANx) (the “Action”). On
June 16, 2005, Televisa, S.A. de C.V. filed its First Amended
Complaint and Demand for Jury Trial in the Action.
B. On August 15, 2005, UCI
filed its Answer to Televisa’s First Amended Complaint, and
Univision filed its Counterclaims and Demand for Jury Trial in the
Action.
C. On January 31, 2006,
Televisa filed its Answer to Univision’s Counterclaims in the
Action.
D. On March 30, 2006, Televisa
filed its Second Amended and Supplemental Complaint in the
Action.
E. On May 5, 2006, UCI filed
its Answer to Televisa’s Second Amended and Supplemental
Complaint, and Univision filed its First Amended Counterclaims in
the Action.
F. On June 22, 2006, Televisa
filed its Answer to Univision’s First Amended Counterclaims
in the Action.
G. On July 19 2006, Televisa,
S.A. de C.V. filed a Complaint for Declaratory Relief in the
Superior Court of the State of California, County of Los Angeles,
entitled Televisa, S.A. de C.V. v. Univision Communications
Inc. , Case No. BC 355701 (“Televisa’s Internet
Claim”), which is currently stayed.
H. On October 3, 2006,
Univision filed its Second Amended Counterclaims in the
Action.
I. On October 27, 2006,
Televisa filed its Answer to Univision’s Second Amended
Counterclaims in the Action.
J. On February 1, 2008, the
Court entered an Order Regarding Dismissal Without Prejudice of
Certain Claims by Televisa and Univision, Docket No. 305, in
the Action (“First Dismissal of Claims Without
Prejudice”).
K. On February 22, 2008, the
Court entered an Order for Stipulation Re Televisa’s Claim of
Breach With Respect to Univision’s Agreement with RCN
Television, S.A., Docket No. 370, in the Action (“RCN
Order”).
L. On April 8, 2008, the Court
entered an Order Re Second Stipulation Regarding Dismissal Without
Prejudice of Certain Claims by Televisa and Univision, Docket
No. 450 (“Second Dismissal of Claims Without
Prejudice”) (the “First Dismissal of Claims Without
Prejudice” and “Second Dismissal of Claims Without
Prejudice” collectively referred to herein as “Claims
Dismissed Without Prejudice”).
M. On April 22, 2008, the Court
bifurcated the trial on Univision’s Tenth Claim for Relief in
its Second Amended Counterclaims (as set forth in Paragraphs 112
through 117 therein) filed in this Action (the claims and positions
of each party herein referred to as the “Internet
Issue”), and, on December 30, 2008, ordered that the
trial on the Internet Issue shall commence on March 3,
2009.
N. On December 22, 2008, the
Parties executed the Joint Stipulation of Facts, filed in this
Action on January 2, 2009 (“Fact Stipulation”),
which is attached hereto as Exhibit “A.”
The Parties desire now to address
and resolve the foregoing; accordingly, upon execution of this
Agreement and upon execution of a Third Amended and Restated
Program License Agreement between the Parties (“Third
PLA”) and of an amendment to the agreement, dated
as
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of January 15, 2009, made by and between
Grupo Televisa, S.A.B. and UCI, regarding the Soccer Games, as
defined therein (“Amended Soccer Agreement”), and for
other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the Parties agree as follows:
1. Payment
1.1. Univision shall pay Televisa
the sum of US$3.5 million in cash upon execution of the
Agreement.
1.2. Univision shall withdraw its
“under protest” designation for every payment listed on
Exhibits G, H, J through R, and U of the Fact Stipulation, to the
extent the “under protest” designation was not already
withdrawn, and shall withdraw any “under protest”
designation or any condition on any payment made to Televisa by
Univision from the beginning of time to the Effective
Date.
2. Dismissals With
Prejudice
2.1. Upon receipt of the payment set
forth in Paragraph 1.1 above, Televisa shall dismiss all of its
claims against Univision in this Action with prejudice (including
the Claims Dismissed Without Prejudice), except for
Televisa’s Internet Claim and the Internet Issue. No
dismissal with prejudice of any such claim shall in any way operate
to apply to future conduct of the Parties under the Third PLA, the
Amended Soccer Agreement, and any other agreement between the
Parties as set forth in Paragraph 6 below, or in any way affect
Televisa’s defense to Univision’s Tenth Claim for
Relief in its Second Amended Counterclaims in this
action.
2.2. Univision shall dismiss all of
its counterclaims against Televisa in this Action (including but
not limited to the counterclaims described in Paragraphs 9 and 21
and Exhibits I and S of the Fact Stipulation) with prejudice
(including the Claims Dismissed Without Prejudice), except
for its counterclaim asserting the Internet Issue. No dismissal
with prejudice
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of any such claim shall in any way
operate to apply to future conduct of the Parties under the Third
PLA, the Amended Soccer Agreement, and any other agreement between
the Parties as set forth in Paragraph 6 below, or in any way affect
Univision’s defense to Televisa’s Internet
Claim.
3. Releases
The Parties release each other as
follows:
3.1. Televisa Release .
Televisa unconditionally and irrevocably fully, finally and forever
waives, release, remise, acquit and discharge Univision and each of
its directors, managing agents, agents, representatives, attorneys,
heirs, assignors and assignees, bankers, accountants and all
persons and entities acting or claiming by, through, under, or in
concert with it or any of them, from and against all claims,
interests, demands, debts, obligations, damages, liabilities,
breaches of duty, costs, expenses, causes of action, lawsuits,
administrative claims, judgments or injunctions, all of any nature
whatsoever, from the beginning of time to the Effective Date,
whether known or unknown, in law or in equity, contractual or
tortious or statutory, suspected or unsuspected, and whether
arising out of any act, breach of duty, omission or occurrence on
the part of or attributable to any of them, of any kind whatsoever,
which were asserted in this Action or arising out of the Second
Amended and Restated Program License Agreement, dated
December 19, 2001 (“2001 PLA”) (“Televisa
Release”), except as set forth in Paragraph 8 below. The
Televisa Release does not include Televisa’s Internet Claim,
Televisa’s defenses to the Internet Issue, the Internet
Issue, and the rights, obligations, and any claims under this
Agreement, the Third PLA, the Amended Soccer Agreement, and any
other agreement between the Parties as set forth in Paragraph 6
below.
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3.2. Univision Release .
Univision unconditionally and irrevocably fully, finally and
forever waives, release, remise, acquit and discharge Televisa and
each of its directors, managing agents, agents, representatives,
insurers, attorneys, heirs, assignors and assignees, bankers,
accountants and all persons and entities acting or claiming by,
through, under, or in concert with it or any of them, from and
against all claims, interests, demands, debts, obligations,
damages, liabilities, breaches of duty, costs, expenses, causes of
action, lawsuits, administrative claims, judgments or injunctions,
all of any nature whatsoever, from the beginning of time to the
Effective Date, whether known or unknown, in law or in equity,
contractual or tortious or statutory, suspected or unsuspected, and
whether arising out of any act, breach of duty, omission or
occurrence on the part of or attributable to any of them, of any
kind whatsoever, which were asserted in this Action or arising out
of the 2001 PLA (“Univision Release”), except as set
forth in Paragraph 8 below. The Univision Release does not include
Televisa’s Internet Claim, the Internet Issue, and the
rights, obligations, and any claims under this Agreement, the Third
PLA, the Amended Soccer Agreement, and any other agreement between
the Parties as set forth in Paragraph 6 below.
4. Section 1542
Waiver
It is the intention of the Parties
in entering into this Agreement that this Agreement shall be
effective according to its terms and that the Televisa Release and
the Univision Release shall each be unconditionally and irrevocably
effective as a waiver, release and discharge of, and bar to, all
claims of any nature whatsoever encompassed within their respective
scope. In furtherance of this intention, the Parties acknowledge
and agree that they have been advised of the existence of Civil
Code section 1542 which provides:
“A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
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