DATED AS OF , 2000
USANI SUB LLC,
USA NETWORKS, INC.,
THE STOCKHOLDERS NAMED HEREIN
STOCKHOLDERS AGREEMENT ("AGREEMENT"), dated as of , 2000, by and among
[NEWCO], a Delaware corporation (the "COMPANY"), USANi Sub LLC, a Delaware
limited liability company ("PARENT"), USA Networks, Inc., a Delaware corporation
("USA"), Styleclick.com Inc., a California corporation ("STYLECLICK"), and Joyce
Freedman, Lee Freedman and Maurizio Vecchione (each, an "INDIVIDUAL STOCKHOLDER"
and, collectively with Parent and USA, the "PRINCIPAL STOCKHOLDERS").
WHEREAS, the Company and Parent have entered into an Agreement and Plan of
Merger, dated as of January 24, 2000 (the "MERGER AGREEMENT"), which provides
for, among other things, the merger (the "MERGER") of Styleclick with a wholly
owned subsidiary of Newco and the concurrent contribution by Parent to Newco of
all of the outstanding limited liability interests of Internet Shopping Network
LLC, a Delaware limited liability company ("ISN");
WHEREAS, after giving effect to the Closing (as defined in the Merger
Agreement), (i) Parent will own shares of Common Stock, par value $.01 per
share, of the Company (the "COMMON STOCK"), (ii) USA will own warrants
exercisable for shares of Common Stock and (iii) each Individual Stockholder
will own that number of shares of Common Stock and options and warrants
convertible into Common Stock; and
WHEREAS, the parties desire to establish certain terms and conditions
concerning the corporate governance of the Company after the Closing and the
disposition of Equity Securities (as defined below) held by each party.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
For the purposes of this Agreement, the following terms shall have the
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, such first Person. The term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"BENEFICIAL OWNERSHIP" shall have the meaning ascribed to such term in
Rule 13d-3, as in effect on the date hereof, promulgated under the Exchange Act;
"BENEFICIALLY OWNED," "OWNED BENEFICIALLY" and like terms shall have correlative
"BOARD OF DIRECTORS" means the Board of Directors of the Company as
constituted from time to time.
"BUSINESS DAY" means any day other than a day on which (i) banks in the
State of New York are authorized or obligated to be closed or (ii) the New York
Stock Exchange is closed.
"CLOSING PRICE" means for any trading day, the last sale price of shares of
Common Stock as reported by the NASDAQ or by the principal national securities
exchange on which the Common Stock is then traded, or if no such sale takes
place on such day, the average of the highest reported bid and lowest reported
asked prices for such day.
"BY-LAWS" means the By-Laws of the Company as in effect after giving effect
to the Closing, as such By-Laws may be amended from time to time.
"EXCHANGE ACT" means the Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
"EXTRAORDINARY TRANSACTION" means (i) any sale or other disposition of all
or substantially all of the assets of the Company to Parent or any Affiliate of
Parent other than to one or more wholly-owned subsidiaries of the Company,
(ii) any merger or similar business combination with or into Parent or any
Affiliate of Parent other than a merger in which the outstanding Common Stock of
the Company is not
affected thereby and (iii) any corporate reorganization or similar transaction
which would have the effect of causing the Common Stock of the Company either to
be held of record by less than 300 Persons, or to be neither listed on any
national securities exchange nor authorized to be quoted on an inter-dealer
"EQUITY SECURITIES" means the Common Stock and any options or warrants to
acquire Common Stock.
"FULLY-DILUTED BASIS" means, with respect to any Individual Stockholder, the
aggregate number of shares of Common Stock that would be beneficially owned by
such Individual Stockholder assuming all Equity Securities beneficially owned by
such Individual Stockholder were converted, exercised or exchanged into or for
Common Stock in accordance with the terms of such Equity Security, without
regard to restrictions as to the date or time at which such Equity Security may
be converted, exercised or exchanged.
"MAJORITY VOTE OF THE INDIVIDUAL STOCKHOLDERS" means, as of any date, the
approval of the Individual Stockholders owning Equity Securities representing at
least a majority of the combined voting power of all outstanding Equity
Securities of the Company ordinarily entitled to vote in the election of
directors that are held by all of the Individual Stockholders determined on a
"NON-EMPLOYEE DIRECTOR" means a "Non-Employee Director" within the meaning
of Rule 16b-3 promulgated under the Exchange Act.
"PERMITTED TRANSFER" means any Transfer pursuant to Section 3.2 or
"PERMITTED TRANSFEREE" means any transferee in a Permitted Transfer.
"PERSON" means any individual, corporation, partnership, firm, group (as
such term is used in Section 13(d)(3) of the Exchange Act), joint venture,
association, trust, limited liability company, unincorporated organization,
estate, trust or other entity.
"REGISTRATION EXPENSES" means all expenses (other than underwriting
discounts and commissions) arising from or incident to the performance of, or
compliance with, Section 3.3(c) of this Agreement, including (a) SEC, stock
exchange and NASD registration and filing fees, (b) all fees and expenses
incurred in complying with securities or blue sky laws (including reasonable
fees, charges and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (c) all printing, messenger and
delivery expenses, (d) the fees, charges and disbursements of counsel to the
Company and of its independent public accountants and any other accounting and
legal fees, charges and expenses incurred by the Company.
"REGISTRABLE SECURITIES" means each of the following: (a) any shares of
Common Stock held of record by the Freedmans and (b) any shares of Common Stock
issued or issuable in respect of shares of Common Stock issued, issuable or held
pursuant to clause (a) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"SIGNIFICANT STOCKHOLDER" means any stockholder of the Company that,
together with its Affiliates, beneficially owns Equity Securities representing
more than 50% of the combined voting power of all outstanding Equity Securities
of the Company ordinarily entitled to vote in the election of directors.
"SUBSIDIARY" of any Person means any corporation, partnership, joint venture
or other legal entity of which such Person (either directly or through or
together with any other Subsidiary of such Person), owns, directly or
indirectly, 50% or more of the stock or other equity interests the holders of
which are generally entitled to vote for the election of the board of directors
or similar governing body of such corporation, partnership, joint venture or
other legal entity.
"TRANSFER" means any transfer, sale, assignment, pledge, lease,
hypothecation, mortgage, gift or creation of security interest, lien or trust
(voting or otherwise) or other encumbrance or other disposition of any
interests; provided that a conversion or exercise of Equity Securities into or
in exchange for Common Stock shall not be deemed to be a Transfer; "TRANSFEROR"
and "TRANSFEREE" have correlative meanings.
"VECCHIONE" means Maurizio Vecchione.
"VECCHIONE EMPLOYMENT AGREEMENT" means the Employment Agreement, dated as of
[ ], 2000, between Vecchione and the Company.
BOARD OF DIRECTORS
Section 1.1 REPRESENTATION. From and after the Closing, each Principal
Stockholder shall vote or act by written consent with respect to all Equity
Securities that it is entitled to vote and shall use its best efforts to, and
the Company shall take all reasonable actions within its control to, cause
(i) the authorized number of directors of the Board of Directors (the
"AUTHORIZED NUMBER") to be established at eleven (11) or such other number of
directors as may be agreed to by Parent and a Majority Vote of the Individual
Stockholders and (ii) the election to the Board of Directors of (A) six
(6) directors, each designated by Parent (collectively, the "PARENT DIRECTORS"
and each an "PARENT DIRECTOR") (B) two (2) directors, each designated by a
Majority Vote of the Individual Stockholders (collectively, the "STOCKHOLDER
DIRECTORS" and each a "STOCKHOLDER DIRECTOR") and (C) three (3) directors, who
shall be Non-Employee Directors appointed by the Board of Directors
(collectively, the "OUTSIDE DIRECTORS" and each an "OUTSIDE DIRECTOR").
Section 1.2 INITIAL COMPOSITION; REMOVAL AND APPOINTMENT OF
DIRECTORS. Effective at the Closing, the persons designated as such by Parent
shall become the initial Parent Directors; the persons designated as such by the
Individual Stockholders shall be the initial Stockholder Directors and the
persons designated as such by Parent shall become the initial Outside Directors.
Parent shall be entitled at any time and for any reason (or for no reason) to
designate one or more Parent Directors for removal, and a Majority Vote of the
Individual Stockholders shall be entitled at any time and for any reason (or for
no reason) to designate one or more Stockholder Directors for removal. Outside
Directors may only be removed in accordance with the By-laws. If, at any time, a
vacancy is created on the Board of Directors by reason of the death, removal or
resignation of any Parent Director, Stockholder Director or Outside Director,
each party shall, as promptly as practicable, take such action as is reasonably
necessary, including the voting of its Equity Securities, to elect a director or
directors designated in accordance with Section 1.1 hereof to fill such vacancy
or vacancies. Each party agrees that it will vote or execute a written consent
with respect to all Equity Securities as to which it is entitled to vote to
effectuate the intent of this Section 1.2.
From and after the Closing, the Company shall not effect any Extraordinary
Transaction unless, prior to the consummation of such Extraordinary Transaction,
a special committee (the "SPECIAL COMMITTEE") of the Board of Directors
comprised solely of directors other than the Parent Directors shall have
(a) approved the terms and conditions of the Extraordinary Transaction and shall
have recommended that the stockholders of the Company vote in favor thereof and
(b) received from a nationally recognized investment banking firm a written
opinion addressed to the Special Committee, for inclusion in the proxy statement
to be delivered to the stockholders, substantially to the effect that the
Extraordinary Transaction is fair to the Company's stockholders (other than any
Significant Stockholder) from a financial point of view.
TRANSFER OF EQUITY SECURITIES
Section 3.1 GENERAL RESTRICTIONS. Except as otherwise permitted in this
Article III, (i) Parent and USA shall not directly or indirectly Transfer any
Equity Securities of the Company for a period of 18 months following the Closing
and (ii) none of the Individual Stockholders shall directly or indirectly
Transfer any Equity Securities of the Company for a period of six months
following the Closing. Any attempt to Transfer Equity Securities or any rights
thereunder in violation of this Section 3.1 shall be null and void AB INITIO and
the Company shall not register any such Transfer. Without limiting the
generality of the foregoing, the rights of the parties hereunder are personal to
them and, other than pursuant to a Permitted Transfer in compliance with the
provisions of this Agreement, no party shall enter (and such party shall prevent
its Affiliates from entering) into any agreement, arrangement or understanding,
written or oral, pursuant to which it shall transfer, or otherwise grant to or
provide any Person, directly or indirectly, any of its rights or interests under
this Agreement. Prior to any Permitted Transfer pursuant to Section 3.2(b),
Section 3.2(d) or Section 3.3(b), the Permitted Transferee thereof shall execute
and deliver to the Company an agreement by which it shall become a party to and
be bound by the applicable terms and provisions of this Agreement, in form and
substance reasonably satisfactory to the Company.
Section 3.2 PERMITTED TRANSFERS. Except as otherwise specified herein, the
provisions of Section 3.1 shall not apply to the following Transfers:
(a) any Transfer of Equity Securities of the Company by Parent, USA or
any of their respective controlled Affiliates (each a "USA PARTY") other
than pursuant to open-market brokered transactions pursuant to Rule 144 of
the Securities Act or registered public secondary offerings; PROVIDED that
any transferee that becomes a Significant Stockholder shall execute and
deliver to the Company an agreement by which it shall become bound by the
applicable terms and provisions of Article III;
(b) any Transfer by any USA Party to or among another USA Party;
(c) any Transfer by a Principal Stockholder to another Principal
(d) any Transfer of Equity Securities by an Individual Stockholder to a
member of such Individual Stockholder's immediate family, which shall
include his or her spouse, siblings, children or grandchildren ("FAMILY
MEMBERS") or to a trust, corporation, partnership or limited liability
company all of Equity Securities of which are beneficially and exclusively
owned by such Individual Stockholder or one or more Family Members of such
Individual Stockholder; PROVIDED, THAT, if any Permitted Transferee of an
Individual Stockholder to whom Equity Securities have been transferred
pursuant to this clause (d) ceases to be a Permitted Transferee of such
Individual Stockholder pursuant to this clause (d), then prior to any event,
circumstance or occurrence causing such cessation such Equity Securities
shall be transferred to such Individual Stockholder (or a Person that would
otherwise be a Permitted Transferee of such Individual Stockholder pursuant
to this Section 3.2(d) following such event, circumstance or occurrence);
(e) any Transfer by an Individual Stockholder with respect to which
Parent has provided its express written consent, or any Transfer by a USA
Party which has been expressly approved by a Majority Vote of the Individual
(f) any Transfer by Vecchione following termination of his employment
(i) by the Company without Cause (as defined in the Vecchione Employment
Agreement) or (ii) by Vecchione with Good Reason (as defined in the
Vecchione Employment Agreement).
Section 3.3 FREEDMAN TRANSFERS AND OTHER MATTERS.
(a) PUBLIC SALES. Except as otherwise specified herein, the provisions
of Section 3.1 shall not apply to any Transfer by Joyce Freedman or Lee
Freedman (collectively, the "FREEDMANS") that:
(i) is made pursuant to Rule 145 of the Securities Act;
(ii) has an aggregate sale price that, when combined with all other
Transfers by the Freedmans pursuant to this Article III, does not exceed
(iii) has a sale price per share that is not less than 102% of the
average Closing Price for the five trading days immediately preceding the
date of the Transfer;
(iv) when combined with all other Transfers by the Freedmans pursuant
to this Article III (other than pursuant to Section 3.3(b)) during the 20
trading days immediately preceding the date of the Transfer, does not
exceed 200,000 shares of Common Stock; and
(v) when combined with all other Transfers by the Freedmans pursuant
to this Article III (other than pursuant to Section 3.3(b)) during the
same trading day, does not exceed 25,000 shares of Common Stock; PROVIDED
that this clause (v) shall only apply if the sales price with respect to
such Transfer is less than the Closing Price on the previous trading day.
(b) PRIVATE SALES. Except as otherwise specified herein, the provisions
of Section 3.1 shall not apply to any privately-negotiated Transfer by the
Freedmans; PROVIDED that the Permitted Transferee thereof shall execute and
deliver to the Company an agreement by which it shall become a party to and
be bound by the applicable terms and provisions of this Article III, in form
and substance reasonably satisfactory to the Company.
(c) REGISTRATION RIGHTS. If, at any time prior to the six month
anniversary of the Closing, the Company proposes to file a registration
statement under the Act with respect to an offering by the Company of any
class of security (other than a registration statement on Form S-4 or
otherwise in connection with a business combination or S-8 (or any successor
form thereto)) under the Act, then the Company shall give written notice of
such proposed filing to the Freedmans at least ten (10) days before the
anticipated filing date, and such notice shall describe in detail the
proposed registration and distribution (including those jurisdictions where
registration under the securities or blue sky laws is intended) and offer
the Freedmans the opportunity to register the number of Registrable
Securities as they may request. If the Freedmans request to participate in
such offering, the Company shall use its reasonable best efforts to cause
the managing underwriter or underwriters of an underwritten offering
proposed by the Company (the "COMPANY UNDERWRITER") to permit them to
include the Registrable Securities held by them in such offering on the same
terms and conditions as the securities of the Company included therein.
Notwithstanding the foregoing, (i) if the Company Underwriter determines
that the total amount of securities which are proposed to be included in
such offering (the "TOTAL SECURITIES") is sufficiently large so as to have a
material adverse effect on the distribution of the Total Securities, then
the Company will include in such registration, to the extent of the number
which the Company is so advised can be sold in (or during the time of) such
offering, FIRST all securities of the Company to be sold for its own account
and SECOND such Registrable Securities requested by any stockholder of the
Company who has requested that such shares be included in such registration
as part of a demand or piggy-back registration PRO RATA (based on the number
of Registrable Securities owned by such stockholders). The Company shall
bear all Registration Expenses in connection with any registration pursuant
to this Section 3.3. Participation by the Freedmans in any registration
effected pursuant to Section 3.3(c) shall be subject to the Freedmans
agreeing to enter into customary underwriting agreements and shall be
subject to such other terms and conditions of the type to which USA and
Parent are subject to pursuant to the Registration Rights Agreement between
Newco and such parties.
(d) CONFIDENTIALITY OBLIGATIONS. The Freedmans hereby agree that any
and all information regarding any Transfer by them, or any intent to
Transfer, shall be kept confidential and not publicly disclosed, except as
may be required under applicable law.
(e) EMPLOYMENT AGREEMENTS. On the sixth month anniversary of the
Closing, all employment agreements between Styleclick and/or any of its
affiliates, on the one hand, and Joyce Freedman or Lee Freedman, on the
other hand, shall automatically terminate and be of no force and effect
without any obligation or liability on the part of Styleclick and/or its
affiliates notwithstanding the terms of such agreements.
Section 3.4 PERMITTED VECCHIONE TRANSFERS. Except as otherwise specified
herein, the provisions of Section 3.1 shall not apply to any Transfer by
(i) is made pursuant to Rule 145 of the Securities Act; and
(ii) when combined with all other Transfers by Vecchione pursuant to
this Article III, does not exceed 50,000 shares of Common Stock.
Section 3.5 HOLDBACK. If and to the extent requested by the managing
underwriter in an underwritten public offering of Equity Securities by the
Company, each Principal Stockholder agrees not to effect any public sale or
distribution of any Equity Securities of the Company during the 90-day period
(or such other period as may reasonably be requested by the Company's
underwriters) beginning on the effective date of the registration statement in
respect of such underwritten offering by the Company (except as part of such
Section 4.1 NOTICES. All notices, requests and other communications to any
party hereunder (including notices to directors pursuant to Article I) shall be
in writing and shall be given (and shall be deemed to have been given upon
receipt) if delivered in person or sent by facsimile, telegram, telex, by
registered or certified mail (postage prepaid, return receipt requested) or by
reputable overnight courier to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 5.1):
if to the Company, to:
if to Parent, to:
if to USA, to:
if to an Individual Stockholder, to such Individual Stockholder's last
known address, as reflected on the records of the Company.
Section 4.2 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by Parent, USA and a Majority Vote of the Individual
Stockholders, or in the case of a waiver, by (i) Parent if the waiver is to
be effective against Parent, (ii) USA if the waiver is to be effective
against USA or (iii) a Majority Vote of the Individual Stockholders if the
waiver is to be effective against the Individual Stockholders.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 4.3 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. No party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement;
PROVIDED that each of Parent and USA may assign, delegate or transfer any of
their respective rights or obligations under this Agreement in connection with a
transfer of Equity Securities permitted hereunder.
Section 4.4 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
Section 4.5 JURISDICTION. Each party to this Agreement hereby irrevocably
agrees that any legal action proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby shall be brought
in the courts of the State of New York and hereby expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and
expressly waives any claim of improper venue and any claim that such courts are
an inconvenient forum.
Section 4.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signature thereto and hereto were upon the same instrument.
Section 4.7 SPECIFIC PERFORMANCE. The parties hereto (and any person who
agrees to be bound hereby pursuant to the terms hereof) acknowledge and agree
that their respective remedies at law for a breach or threatened breach of any
of the provisions of this Agreement would be inadequate and, in recognition of
that fact, agree that, in the event of a breach or threatened breach by any
other party (or any of such persons) of the provisions of this Agreement, in
addition to any remedies at law, they shall, respectively, without posting any
bond, be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available.
Section 4.8 NO THIRD PARTY BENEFICIARIES. Nothing contained in this
Agreement, express or implied, is intended to or shall confer upon anyone other
than the parties hereto (and their permitted successors and assigns) any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 4.9 TERMINATION. This Agreement shall terminate on the earlier of
(a) the third anniversary of the date hereof, (b) the date on which the
Individual Stockholders (together with any transferees in accordance with
Sections 3.2(c) and (d)) collectively cease to beneficially own, on a
Fully-Diluted Basis, at least 66 2/3% of the Equity Securities of the Company
beneficially owned, on a Fully-Diluted Basis, by all Individual Stockholders at
the Effective Time of the Merger or (c) the date on which Parent and USA
(together with any transferees in accordance with Section 3.2(b)) collectively
cease to beneficially own, on a Fully Diluted Basis, at least 66 2/3 of the
Equity Securities owned, on a Fully Diluted Basis, by USA and Parent at the
Effective Time of the Merger.
Section 4.10 SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any party hereto or set of circumstances
is held invalid, the remainder of this Agreement and the application of such
provision to the other parties hereto or sets of circumstances shall not be
affected, unless the provisions held invalid shall substantially impair the
benefits of the remaining portions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
USANi SUB LLC
USA NETWORKS, INC.