EXHIBIT 10.1
EXECUTION VERSION
PURCHASE AGREEMENT
(TyC)
This
Purchase Agreement (the “Agreement”) is made this
28 th
day of April, 2005, by and between
Liberty Programming Argentina, LLC, a Delaware limited liability
company (“LPA”), and FTR Investments Corp., a British
Virgin Islands corporation (“FTR”).
RECITALS
A. LPA
is the holder of (i) 20,064,000 shares (the “TyC
Shares”) of the capital of Torneos y Competencias, S.A., a
sociedad anónima organized under the laws of Argentina
(“TyC”), representing a 40% equity interest in TyC, and
an option to purchase 2,558,160 shares of AyN Argentina Holdings,
LLC and 4,464,240 shares of AyN on the terms and subject to the
conditions set forth in Sections 4.2 and 4.3 of AyN Purchase
Agreement (the “AyN Call Right”).
B. FTR
desires to purchase the TyC Shares and the AyN Call Right from LPA,
and LPA desires to sell the TyC Shares and the AyN Call Right to
FTR, for a total purchase price of US $20,939,594 (the
“Purchase Price”) upon the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants herein contained, and intending to be
legally bound, LPA and FTR hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1.
Defined Terms . Capitalized terms used in this Agreement
shall have the following meanings:
(a) “ACH”
shall mean ACH Acquisition Co. Ltd, a limited company formed under
the laws of the Cayman Islands.
(b) “Affiliate”
shall mean, with respect to any Person, any Person that directly or
indirectly Controls, is Controlled by, or is under common Control
with such Person.
(c) “Agreement”
shall have the meaning specified in the preamble.
(d) “Assignment
and Acceptance” shall mean the assignment and acceptance in
the form attached as Exhibit A to this
Agreement.
(e) “AyN”
shall mean AyN Argentina, LLC, a Delaware limited liability
company.
(f) “AyN
Call Right” shall have the meaning specified in the
recitals.
(g) “AyN
Purchase Agreement” shall mean the Ownership Interest
Purchase Agreement dated April 25, 2003 between LPA and Laisus
Corporation, S.A., as amended by the Amendment to Ownership
Interest Purchase Agreement dated as of the date hereof.
(h) “Business
Day” shall mean any day other than Saturday, Sunday or a day
on which banking institutions in Denver, Colorado or Buenos Aires,
Argentina are required or authorized to be closed.
(i) “Cash
Consideration” shall have the meaning specified in
Section 2.2.
(j) “Control”
shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise.
(k) “FPAS”
shall mean Fox Pan American Sports LLC, a Delaware limited
liability company.
(l) “FPAS
Note” shall mean that certain promissory note dated as of the
date hereof in the original principal amount of US $7,939,594
originally issued by FPAS to TyC and subsequently assigned by TyC
to FTR.
(m) “FPAS
Security Agreements” shall mean the pledge and security
agreements listed on Schedule 1.1(n) to this Agreement
pursuant to which FPAS granted to TyC security interests in certain
assets to secure performance of FPAS’ obligations under the
FPAS Note, the benefits of which TyC has assigned to
FTR.
(n) “FPAS
Transfer Restriction Agreement” shall mean the transfer
restriction agreement dated as of the date hereof among FPAS, Hicks
Muse Tate & Furst Incorporated, Pan American Sports Enterprises
Company, International Sports Programming, LLC, FSI SPV, Inc. and
TyC, the rights under which TyC has assigned to FTR.
(o) “FTR”
shall have the meaning specified in the preamble.
(p) “FTR
Assumed Obligations” shall have the meaning specified in
Section 2.1.
(q) “Instrumento
de Adhesión” shall mean the agreement to be bound by the
TyC Shareholders’ Agreement to be executed by FTR in the form
of Exhibit B to this Agreement.
(r) “Interest”
shall mean each of the TyC Shares and the AyN Call
Right.
(s) “Laisus
Notice Letter” shall mean the notice, in the form of
Exhibit C to this Agreement, notifying Laisus
Corporation, S.A. of the transfer of the AyN Call Right to FTR
pursuant to the provisions of this Agreement.
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(t) “Lien”
shall mean any lien, pledge, encumbrance, security interest,
mortgage, charge, agreement or claim of any kind
whatsoever.
(u) “LPA”
shall have the meaning specified in the preamble.
(v) “LMINT”
shall mean Liberty Media International Holdings, LLC, a Delaware
limited liability (formerly known as TeleCommunications
International, Inc.).
(w) “Non-Cash
Consideration” shall have the meaning specified in
Section 2.2.
(x) “Party”
shall mean each of the parties to this Agreement.
(y) “Person”
shall mean a human being or a corporation, partnership, limited
liability company, limited liability partnership, trust,
unincorporated organization, association or other
entity.
(z) “Security
Interest Consent Agreement” shall mean the security interest
consent agreement dated as of the date hereof between T&T
Sports Marketing Ltd. and TyC.
(aa) “Sitkin”
shall mean Sitkin Corporation S.A., a sociedad anónima
organized under the laws of Uruguay.
(bb) “TyC”
shall have the meaning specified in the recitals.
(cc) “TyC
Shareholders’ Agreement” shall mean the shareholders
agreement executed and entered into on September 30, 1997 by
and among Carlos Vicente Ávila, Juan Cruz Ávila, Diego
Gabriel Ávila, Luis Benjamín Nofal, Sunflower Continental
Corp., TeleCommunications International, Inc. (now known as Liberty
Media International Holdings, LLC.), Liberty/TINTA LLC, CEI
Citicorp Holdings, S.A., T.I. Telefónica Internacional de
España S.A. (now known as Telefónica Internacional, S.A.)
and Southtel Equity Corporation, as amended by the first addendum
thereto dated December 28, 1998 and by a second addendum
thereto dated July 10, 2000.
(dd) “TyC
Shares” shall have the meaning specified in the
recitals.
(ee) “Waiver
and Release” shall mean the waiver by the shareholders of TyC
other than LPA of their rights under the TyC Shareholders’
Agreement with respect to the transactions contemplated in this
Agreement and the release of LPA and LMINT from the TyC
Shareholders’ Agreement, all in the form attached as
Exhibit D to this Agreement.
ARTICLE 2
PURCHASE AND SALE OF THE INTERESTS
2.1.
Transfer of LPA’s Interests . LPA hereby transfers and
conveys to FTR the TyC Shares and the AyN Call Right, free and
clear of all Liens (other than Liens arising under the TyC
Shareholders Agreement or the AyN Purchase Agreement), and FTR
hereby assumes and agrees to perform and discharge when due all
obligations of LPA or LMINT under the TyC Shareholders’
Agreement other than any obligation arising out of a breach by LPA
or
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LMINT of the terms of the TyC
Shareholders’ Agreement applicable to such entity prior to
the date of this Agreement (the “FTR Assumed
Obligations”).
2.2.
Purchase Price . As consideration for the TyC Shares and the
AyN Call Right, simultaneously with the execution of this
Agreement, FTR is paying to LPA US $13,000,000 in cash (the
“Cash Consideration”) and hereby assigns to LPA all of
FTR’s right, title and interest in and to, and all of
FTR’s benefits under, each of the FPAS Note, the FPAS
Security Agreements, the FPAS Transfer Restriction Agreement and
the Security Interest Consent Agreement (the “Non-Cash
Consideration”).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF LPA
LPA
represents and warrants to FTR as follows:
3.1.
Organization and Authority . LPA is a limited liability
company duly organized, validly existing and in good standing under
the laws of the state of Delaware. LPA has all requisite power and
authority to execute, deliver and perform its obligations under
this Agreement.
3.2.
Actions and Enforceability . All actions on the part of LPA
necessary under its organizational documents for the authorization
of this Agreement and for the performance of all obligations of LPA
hereunder have been taken. This Agreement has been duly executed
and delivered by LPA and constitutes a legal, valid and binding
obligation of LPA enforceable against LPA in accordance with its
terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors’ rights and
(ii) general principles of equity that restrict the
availability of equitable remedies.
3.3.
Ownership . LPA is the legal, record and beneficial owner of
the TyC Shares and the AyN Call Right. Upon payment of the Cash
Consideration and delivery of the Non-Cash Consideration, FTR shall
acquire lawful and valid title to the TyC Shares and the AyN Call
Right, free and clear of any and all Liens other than Liens arising
under the TyC Shareholders’ Agreement the AyN Purchase
Agreement. Other than the TyC Shares and the AyN Call Right, LPA is
not, directly or indirectly, the legal, record or beneficial owner
of any securities or other ownership interests in TyC or AyN and
has no rights to acquire any securities or other ownership
interests in TyC or AyN.
3.4.
Actions . There is no action, suit, investigation or
proceeding, governmental or otherwise, pending, or to the knowledge
of LPA threatened, against LPA specifically relating to the
transactions under this Agreement, nor, to the knowledge of LPA, is
there any basis for such actions, suits investigations or
proceedings.
3.5. No
Other Representations or Warranties . EXCEPT AS SET FORTH IN
THE PRECEDING PROVISIONS OF THIS ARTICLE 3, LPA IS NOT MAKING ANY
OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE TyC SHARES, TyC,
THE AyN CALL RIGHT OR AyN, AND THE TyC SHARES AND THE AyN CALL
RIGHT ARE BEING ACQUIRED BY FTR “AS IS,” “WHERE
IS,” WITH AND SUBJECT TO ALL
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FAULTS AND DEFECTS THEREIN AND
WITHOUT ANY REPRESENTATION, WARRANTY OR GUARANTEE OF ANY KIND,
EITHER EXPRESS OR IMPLIED, ARISING OUT OF LAW OR OTHERWISE,
INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FTR
FTR
represents and warrants to LPA as follows:
4.1.
Organization and Authority . FTR is a corporation duly
organized, validly existing and in good standing under the laws of
the British Virgin Islands. FTR has all requisite power and
authority to execute, deliver and perform its obligations under
this Agreement.
4.2.
Actions and Enforceability . All actions on the part of FTR
necessary under its organizational documents for the authorization
of this Agreement and for the performance of all obligations of FTR
hereunder have been taken. This Agreement has been duly executed
and delivered by FTR and constitutes a legal, valid and binding
obligation of FTR enforceable against FTR in accordance with its
terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors’ rights and
(ii) general principles of equity that restrict the
availability of equitable remedies.
4.3.
Ownership . FTR is the legal, record and beneficial holder
of the FPAS Note. Each of the FPAS Note, the FPAS Security
Agreements, the FPAS Transfer Restriction Agreement and the
Security Interest Consent Agreement constitutes a legal, valid and
binding obligation of each party thereto enforceable against each
such party in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of
creditors’ rights and general principles of equity that
restrict the availability of equitable remedies. As of the date of
this Agreement, (i) no payments have been made under the FPAS
Note, (ii) no party is in default under any of the FPAS Note,
the FPAS Security Agreements, the FPAS Transfer Restriction
Agreement or the Security Interest Consent Agreement, and
(iii) none of the FPAS Note, the FPAS Security Agreements, the
FPAS Transfer Restriction Agreement and the Security Interest
Consent Agreement has been amended or supplemented in any respect.
No consent of any third party is required for the assignment by FTR
of the FPAS Note or FTR’s rights under, including the right
to enforce, the FPAS Security Agreements, the FPAS Transfer
Restriction Agreement or the Security Interest Consent
Agreement.
4.4.
Actions . There is no action, suit, investigation or
proceeding, governmental or otherwise, pending, or to the knowledge
of FTR threatened, against FTR specifically relating to the
transactions under this Agreement, nor, to the knowledge of FTR, is
there any basis for such actions, suits investigations or
proceedings.
4.5.
Unregistered Interests . FTR (a) acknowledges that
neither the TyC Shares nor the AyN Call Right have been registered
under the United States Securities Act of
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1933, as amended, or under
similar provisions of state law or the laws of any applicable
foreign jurisdiction, (b) represents and warrants that FTR is
acquiring such Interests for FTR’s own account, for
investment, and without a view to the distribution of such
Interests, and (c) agrees not to sell, transfer or otherwise
dispose of, or to attempt to sell, transfer or otherwise dispose
of, all or any part of such Interests without registration under
the Securities Act of 1933, as amended, and any applicable state
securities laws or similar laws of any applicable foreign
jurisdiction, unless such sale, transfer or other disposition is
exempt from such registration requirements.
4.6. No
Consent Required . FTR represents and warrants to LPA that
(a) both itself and all Persons directly or indirectly
Controlling FTR are exempted from notification to the Argentine
Comisión Nacional de Defensa de la Competencia pursuant to
Section 10c) of Argentine Law 25,156 (the “Argentina
Antitrust Law”), and (b) no consent, approval, order or
authorization of, or registration, declaration or filing with, any
Argentine governmental entity is required by any Person under any
Argentine law, statute, rule, regulation, ordinance or other legal
requirement (including the Argentine Antitrust Law) in connection
with the execution and delivery of this Agreement or for the
transactions under this Agreement to become effective.
ARTICLE 5
OTHER COVENANTS AND AGREEMENTS
5.1.
Commercially Reasonable Efforts . Subject to the terms and
conditions of this Agreement, each of the Parties shall use its
commercially reasonable efforts to do, or cause to be done, all
actions and things necessary, proper, or advisable under applicable
law and regulations to make effective the transactions under this
Agreement. If at any time after the consummation of the
transactions contemplated by this Agreement, any further action is
necessary to comply with this Agreement, the Parties or their duly
authorized representatives shall take such action.
ARTICLE 6
DELIVERABLES UPON EXECUTION
6.1. Time
and Place . Signature pages to this Agreement are being
delivered by the Parties at the offices of Sherman & Howard
L.L.C., 633 Seventeenth Street, Denver, Colorado, upon prior or
simultaneous completion of the actions required by
Section 6.2.
6.2.
Actions Occurring at or Prior to Signing .
(a) LPA
has delivered to FTR certificates evidencing the TyC Shares with
appropriate endorsements, an executed transfer notice under
Section 215 of the Argentina Corporations Act, and such other
instruments or documents as may be necessary or appropriate to
properly transfer to FTR title to the TyC Shares and the AyN Call
Right, free and clear of all Liens (other than Liens arising under
the TyC Shareholders’ Agreement or the AyN Purchase
Agreement);
(b) FTR
has delivered the Cash Consideration to LPA by wire transfer of
immediately available funds, in accordance with instructions
provided by LPA to FTR;
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(c) FTR
has delivered the FPAS Note with appropriate endorsements and such
other instruments or documents as may be necessary or appropriate
to properly transfer to LPA title to the Non-Cash Consideration,
free and clear of all Liens;
(d) FTR,
LPA and FPAS have executed and delivered the Assignment and
Acceptance;
(e) LPA
has executed and delivered to Laisus the Laisus Notice
Letter;
(f) Each
of AyN, ACH, Sitkin, LPA and LMINT has executed and delivered the
Waiver and Release; and
(g) Each
of FTR, AyN, ACH and Sitkin has executed and delivered the
Instrumento de Adhesión.
ARTICLE 7
INDEMNIFICATION
7.1.
Indemnification by LPA . LPA hereby indemnifies and agrees
to defend and hold harmless FTR, its Affiliates, and each of their
respective directors, officers, employees and agents (each, an
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