Exhibit 10.1
CONFIDENTIAL
STOCK PURCHASE AGREEMENT, dated as of May 2, 2002 (this "Agreement"),
among ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Seller"), and each of the purchasers listed on
Schedule I hereto (each, a "Purchaser").
WHEREAS the parties hereto desire to consummate the
transaction contemplated herein, pursuant to which each Purchaser will purchase
from the Seller the number of shares of Common Stock, par value $0.01 per share
(the "Shares"), of USA Networks, Inc., a Delaware corporation (the "Company"),
set forth on Schedule I hereto,
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
Definitions
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SECTION 1.1. Definitions. As used herein, the following terms
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shall have the following meanings:
"Act" means The Securities Act of 1933, as amended, and the
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rules and regulations issued in respect thereto.
"Encumbrance" means any security interest, mortgage, pledge,
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hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Law" means any law, statute, regulation, rule, ordinance,
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requirement or other binding action or requirement of any governmental,
regulatory or administrative body, agency or authority or any court of judicial
authority.
"Order" means any decree, order, judgment, writ, award,
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injunction, stipulation or consent of or by any Federal, state or local
government or any court, administrative agency or commission or other
governmental authority or agency, domestic or foreign.
"Person" means any individual, corporation, general or limited
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partnership, joint venture, association, limited liability company, joint stock
company, trust, business, bank, trust company, estate (including any
beneficiaries thereof), unincorporated entity, cooperative, association,
government branch, agency or political subdivision thereof or organization of
any kind.
SECTION 1.2. Other Definitions.
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Term Defined in Section
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"Agreement" ................................................... Preamble
"Closing" .......................................................... 2.2
"Closing Date" ..................................................... 2.2
"Company" ..................................................... Preamble
"Purchaser" ................................................... Preamble
"Purchase Price" ................................................... 2.1
"Seller" ...................................................... Preamble
"Shares" ...................................................... Preamble
ARTICLE II
Purchase and Sale of Stock
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SECTION 2.1. Purchase and Sale. Subject to the terms and
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conditions of this Agreement, each Purchaser, severally and not jointly, agrees
to purchase, and the Seller agrees to sell to each Purchaser, at the Closing the
number of Shares set forth opposite the name of such Purchaser on Schedule I
hereto for a purchase price of $28.50 per share (the aggregate amount to be paid
by each Purchaser as set forth on Schedule I, the "Purchase Price").
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SECTION 2.2. The Closing.
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(a) Subject to the terms and conditions of this Agreement, the
closing of the transactions contemplated by this Agreement (the "Closing") shall
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take place at the offices of ▇▇▇▇▇ & Company Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 a.m. New York City Time no later than May 7, 2002, or
at such other time and place as shall be mutually agreed upon by the Seller and
each Purchaser (the "Closing Date").
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(b) Subject to the conditions set forth in this Agreement, the
parties agree to consummate the following transactions no later than the Closing
Date:
(i) each Purchaser shall deliver to the Seller the
Purchase Price by wire transfer of immediately available funds to the
account designated in writing by the Seller prior to the Closing; and
(ii) the Seller shall assign and transfer to the
Purchasers good and valid title in and to the Shares, free and clear of
any Encumbrance (other than any Encumbrance arising by or through such
Purchaser), by delivering to the Purchasers one or more stock
certificates representing the Shares being sold, each registered in the
name of such Purchaser or its nominee.
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ARTICLE III
Representations and Warranties of the Seller
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The Seller hereby represents and warrants as follows:
SECTION 3.1. Power and Authority; Enforceability. The Seller
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has all requisite capacity, power and authority to execute, deliver and perform
this Agreement. This Agreement has been duly executed and delivered and
constitutes a valid and legally binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
SECTION 3.2. Ownership; Transferability. The Shares are owned
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by the Seller free and clear of any Encumbrance, and there are no restrictions
on transfer of the Shares to the Purchasers pursuant to the terms of this
Agreement.
SECTION 3.3. Consents and Approvals. Subject to the accuracy
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of the representations and warranties made by each Purchaser in Article IV
hereof, neither the execution, delivery and performance of this Agreement by the
Seller, nor the consummation by the Seller of any transaction related hereto
will require any consent, approval, Order or authorization of, filing,
registration, declaration or taking of any other action with, or notice to, any
Person, other than such consents, approvals, filings or actions (i) as may be
required under the Federal securities laws which have or will be made or (ii)
which have already been obtained.
SECTION 3.4. Brokers, etc. Except for a fee payable to ▇▇▇▇▇ &
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Company Incorporated, the Seller is not obligated to pay any fee or commission
to any broker, finder or other similar Person in connection with the
transactions contemplated by this Agreement.
SECTION 3.5. Litigation. There are no actions, suits,
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proceedings, orders, investigations or claims pending or, to the knowledge of
the Seller, threatened against or affecting the Seller, at law or in equity,
before any court, arbitration panel, tribunal or governmental commission,
bureau, agency or instrumentality which seeks to enjoin or restrain the
consummation of the transactions contemplated by this Agreement.
SECTION 3.6. Information. The Seller is not aware of any
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material adverse change in the condition (financial or otherwise), business or
results of operations of the Company and its subsidiaries taken as a whole
except as publicly disclosed by the Company subsequent to the date of the most
recent financial statements included with the Company's filings with the
Securities and Exchange Commission.
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ARTICLE IV
Representations and Warranties of the Purchasers
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Each Purchaser hereby represents and warrants with respect to
itself as follows:
SECTION 4.1. Existence; Power and Authority. If the Purchaser
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is a corporation, the Purchaser is a corporation duly organized, is validly
existing and is in good standing under the laws of its jurisdiction of
formation. If the Purchaser is a partnership or limited liability company, the
Purchaser is duly organized, validly existing and in good standing under the
laws of the jurisdiction where it is organized. If the Purchaser is an
individual, the Purchaser has the legal capacity to enter into this Agreement.
The Purchaser has full power and authority to execute, deliver and perform this
Agreement. This Agreement has been duly executed and delivered and constitutes a
valid and legally binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies. Each of the Purchasers listed on Schedule I
hereto under the heading "Separate Account Purchasers" (each, an "Account
Purchaser") is entering into this Agreement and the transactions contemplated
hereby through its agent (the "Agent"), which has full discretionary authority
to manage the account of such Account Purchaser into which the Shares are being
purchased, and which has full authority to enter into this Agreement on behalf
of such Account Purchaser and to bind such Account Purchaser to the terms
hereof.
SECTION 4.2. Purchase Entirely for Own Account. This Agreement
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is made with each Purchaser in reliance upon each Purchaser's representation to
the Seller, which by each Purchaser's execution of this Agreement each Purchaser
hereby confirms, that (i) the Shares to be received by each Purchaser will be
acquired (by the Agent on behalf of the Purchaser, in the case of the Account
Purchasers) for investment for each Purchaser's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and (ii) each Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same, except, in the case of (i)
and (ii) of this Section, as permitted by the Act. By executing this Agreement,
each Purchaser further represents that it does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or grant
participation to such Person or to any third person, with respect to any of the
Shares being purchased by it hereunder.
SECTION 4.3. Disclosure of Information. Each Purchaser
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believes it or, in the case of the Account Purchasers, the Agent, has all the
information it or the Agent, in the case of the Account Purchasers, considers
necessary or appropriate for deciding whether to purchase the Shares.
SECTION 4.4. Investment Experience. Each Purchaser, and the
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Agent, on behalf of the Account Purchasers, acknowledges that it (i) has such
knowledge and experience in
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financial and business matters that it is capable of evaluating the merits and
risks of the investment in the Shares, (ii) believes that it has the information
it considers necessary or appropriate for deciding whether to purchase the
Shares and (iii) is able, without materially impairing its financial condition,
to hold the Shares for an indefinite period of time and to suffer a complete
loss of its investment. Each Purchaser also represents that it has not been
organized solely for the purpose of acquiring the Shares being purchased by it
hereunder.
SECTION 4.5. Accredited Investor. Each Purchaser is an
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"accredited investor" within the meaning of Rule 501 of Regulation D under the
Act, as presently in effect.
SECTION 4.6. Restricted Securities. Each Purchaser and the
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Agent, in the case of the Account Purchasers, understands that the Shares are
characterized as "restricted securities" under the Federal securities laws
inasmuch as they are being acquired from an affiliate of the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances.
SECTION 4.7. Further Limitations on Disposition. Without in
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any way limiting the above, each Purchaser further agrees not to make any sale
or transfer of all or any portion of the Shares unless:
(a) there is then in effect a registration statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) such Purchaser shall have notified the Company of the
proposed disposition and shall have furnished the Company with a
reasonably detailed statement of the circumstances surrounding the
proposed disposition, and (ii) if requested by the Company, such
Purchaser shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition is exempt
from the registration and prospectus delivery requirements under the
Act. The obligations of each Purchaser pursuant to (b)(i) and (ii) of
this Section shall terminate upon the second anniversary of the Closing
Date.
SECTION 4.8. Consents and Approvals. Neither the execution,
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delivery and performance of this Agreement by such Purchaser, nor the
consummation by such Purchaser of any transaction related hereto will require
any consent, approval, Order or authorization by, filing, registration,
declaration or taking of any other action with, or notice to, any Person, other
than such consents, approvals, filings or actions (i) as may be required under
the Federal securities laws or (ii) which have already been obtained. The
acquisition of the Shares by such Purchaser is not subject to the notice and
waiting period requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended.
SECTION 4.9. Legends. It is understood that the certificate(s)
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evidencing the Shares shall bear the following legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT
SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS UNDER THE ACT.
SECTION 4.11. Brokers, etc. Each Purchaser represents that it
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is not obligated to pay any fee or commission to any broker, finder or other
similar Person in connection with the transactions contemplated by this
Agreement.
ARTICLE V
Conditions Precedent; Related Covenants
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SECTION 5.1. Conditions Precedent to Obligations of All
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Parties. The respective obligations of each party to this Agreement shall be
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subject to the fulfillment, at or prior to the Closing Date, to the following
conditions, or waiver by such party:
(a) Legality. At the time of the Closing, the transactions
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contemplated by this Agreement shall be legally permitted by all
applicable Laws and Orders.
(b) Absence of Proceedings to Restrain Consummation of the
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Agreement. No judgment, injunction or order shall have been entered
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restraining or prohibiting the transactions contemplated by this
Agreement.
SECTION 5.2. Conditions Precedent to Obligations of each
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Purchaser. The obligation of each Purchaser to purchase Shares at the Closing is
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subject to the fulfillment of each of the following conditions:
(a) Representations and Warranties. The representations and
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warranties of the Seller set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and
as of the Closing Date.
(b) Performance. The Seller shall have performed and complied
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in all material respects with all agreements, obligations and
conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing.
(c) Registration Rights Agreement. The Registration Rights
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Agreement among the Company and the Purchasers substantially in the
form previously agreed by the parties shall have been executed
and delivered by the Company, assuming the execution and delivery
thereof by each Purchaser.
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SECTION 5.3. Conditions Precedent to Obligations of the
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Seller. The obligations of the Seller to each Purchaser shall be subject to the
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fulfillment, at or prior to the Closing, of the following conditions:
(a) Representations and Warranties. The representations and
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warranties of such Purchaser set forth in this Agreement shall be true
and correct in all material respects as of the date of this Agreement
and as of the Closing Date.
(b) Performance. Such Purchaser shall have performed and
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complied in all material respects with all agreements, obligations and
conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing Date.
SECTION 5.4. Satisfaction of Conditions and Consummation of
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Transactions. Notwithstanding anything to the contrary in this Agreement, (i)
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each Purchaser shall use its best efforts to cause the conditions to the
Seller's obligations hereunder and (ii) the Seller shall use its best efforts to
cause the conditions to each Purchaser's obligations hereunder, (including in
the case of both (i) and (ii) of this Section those obligations set forth in
Section 5.1) to be satisfied as soon as reasonably possible, and to consummate
the transactions contemplated by this Agreement as soon as reasonably possible
after the satisfaction thereof and in any event no later than May 7, 2002.
ARTICLE VI
Termination
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SECTION 6.1. Termination by Mutual Consent. This Agreement may
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be terminated and the transactions contemplated hereby may be abandoned at any
time prior to the Closing by the written consent of each party hereto.
SECTION 6.2. Termination by either the Seller or a Purchaser.
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This Agreement may be terminated (upon written notice from the terminating party
hereto to the other parties hereto) and the transactions contemplated hereby may
be abandoned by action of any party hereto, if (i) the Closing shall not have
occurred on or prior to May 7, 2002, or (ii) any Federal, state or local
government or any court, administrative agency or commission or other
governmental authority or agency, domestic or foreign shall have issued a Law or
Order permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such Law or Order shall have become final
and nonappealable.
SECTION 6.3. Effect of Termination and Abandonment. In the
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event of termination of this Agreement pursuant to this Article VI hereof, no
party hereto (or in the case of the Seller, any of his representatives or, in
the case of each Purchaser, its directors or officers or other controlling
persons) shall have any liability or further obligation to any other party
hereto pursuant to this Agreement, except that Article VII hereof shall survive
termination of this Agreement and nothing herein will relieve any party hereto
from liability for any breach of this
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Agreement occurring prior to such termination. Notwithstanding anything to the
contrary, the termination of this Agreement pursuant to this Article 6 by one or
more, but not all of the Purchasers shall not terminate the obligations or
requirements of the remaining Purchasers under this Agreement.
ARTICLE VII
General Provisions; Other Agreements
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SECTION 7.1. Default by a Purchaser. The failure of one or
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more, but not all of the Purchasers, to fulfill their respective obligations
under this Agreement shall not discharge or release the remaining Purchasers
from their obligations hereunder.
SECTION 7.2. Press Releases. No press release or public
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announcement related to this Agreement or the transactions contemplated hereby
shall be issued or made by any party hereto without the approval of the
Purchasers and the Seller, other than disclosures and public filings by the
Seller related to the transactions contemplated by this Agreement or as
otherwise required by Law. If any such press release or public announcement is
so required by a Purchaser (except in the case of any disclosure required under
the Federal securities laws to be made in a filing with the Securities and
Exchange Commission), the Purchaser making such disclosure shall consult with
the other parties prior to making such disclosure, and the parties shall use all
reasonable efforts, acting in good faith, to agree upon a text for such
disclosure which is satisfactory to each of the parties.
SECTION 7.3. Expenses. Regardless of whether the transactions
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contemplated hereby are consummated, all legal and other costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party hereto incurring such costs and expenses.
SECTION 7.4. Governing Law. This Agreement shall be governed
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by and construed in accordance with the laws of the State of New York without
regard to the conflicts of laws provisions thereof.
SECTION 7.5. Headings. Article and Section headings used in
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this Agreement are for convenience only and shall not affect the meaning or
construction of this Agreement.
SECTION 7.6. Notices. All notices, requests, demands or other
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communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party hereto when
delivered by hand, by messenger or by a nationally recognized overnight delivery
company, when delivered by facsimile and confirmed by return facsimile, in each
case to the applicable addresses set forth below:
(a) if to a Purchaser, to the address specified on the
signature page hereof;
(b) if to the Seller to:
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▇▇▇▇ ▇. ▇▇▇▇▇
c/o Vulcan, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vulcan, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Irell & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 7.7. Parties in Interest. All the terms and provisions
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of this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns; provided that, except as otherwise expressly set forth in this
Agreement, neither the rights nor the obligations of (i) the Seller, may be
assigned or delegated without the prior written consent of each of the
Purchasers or (ii) any Purchaser, may be assigned or delegated without the prior
written consent of the Seller, and any purported assignment in violation hereof
shall be null and void.
SECTION 7.8. Entire Agreement. This Agreement constitutes the
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entire agreement between the parties hereto and supersedes all prior agreements
and understandings, both written and oral, with respect to the subject matter
hereof.
SECTION 7.9. Counterparts. This Agreement may be executed in
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one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Signatures on this
Agreement may be communicated by facsimile transmission and shall be binding
upon the parties hereto so transmitting their signatures. Counterparts with
original signatures shall be provided to the other parties hereto following the
applicable facsimile transmission; provided that the failure to provide the
original counterpart shall have no effect on the validity or the binding nature
of this Agreement.
SECTION 7.10. Amendment. Any term of this Agreement may be
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modified or amended only by an instrument in writing signed by each of the
parties hereto. Any amendment
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or modification effected in accordance with this paragraph shall be binding upon
each holder of any securities purchased under this Agreement at the time
outstanding, each future holder of all such securities and the Seller.
SECTION 7.11. Severability. If one or more provisions of this
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Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be duly executed and delivered as of the date set forth above.
▇▇▇▇ ▇. ▇▇▇▇▇
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[Purchaser Signature Pages Follow]
NAME OF PURCHASER: ADDRESS FOR NOTICES (Please Print):
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SIGNATURE: ---------------------------------------
Attention:
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Telecopy:
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By:
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Name:
Title:
SCHEDULE I
PURCHASER
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AGGREGATE # OF SHARES
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PURCHASE PRICE
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"SEPARATE ACCOUNT PURCHASERS" (if applicable)
