EXHIBIT 4.1
CONFIDENTIAL
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is
dated as of May 2, 2002, by and between:
1. USA NETWORKS, INC, a company incorporated under the laws of the state
of Delaware whose principal executive offices are at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("USA"); and
2. XXXX XXXXX CAPITAL MANAGEMENT, INC., on behalf of the asset management
clients for which Xxxx Xxxxx Capital Management, Inc. has discretionary
authority (the "LMCMI Shareholder" or a "Shareholder") and XXXX XXXXX FUNDS
MANAGEMENT, INC., on behalf of the investment companies for which it is
investment advisor (the "LMFM Shareholder," or a "Shareholder," and together
with the LMCMI Shareholder, the "Shareholders").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution hereof, the
Shareholders have agreed to acquire an aggregate of 11,500,000 shares of common
stock of USA, par value $0.01 per share ("Common Stock"), in a private sale (the
"Transaction") exempt from the registration requirements of the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to the terms and subject to
the conditions set forth in a Stock Purchase Agreement, dated as of May 2, 2002
(the "Acquisition Agreement") (capitalized terms used in this Agreement and not
otherwise defined shall have the meanings ascribed to such terms in the
Acquisition Agreement);
WHEREAS, USA has agreed, on the terms and subject to the
conditions set forth herein, to provide registration rights to the initial
purchasers in the Transaction and Affiliates (as defined herein) of the
Shareholders who become holders of the Registrable Securities with respect to
the shares of Common Stock acquired by the Shareholders in the Transaction.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements, covenants, representations and warranties contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. SHELF REGISTRATION STATEMENT.
1.1 FILING; EFFECTIVE PERIOD. USA shall prepare and file with the
Securities and Exchange Commission (the "SEC") as soon as reasonably
practicable, but in no event
more than 30 days after the date hereof, a Registration Statement on Form
S-3 (or other appropriate form should Form S-3 be unavailable for USA) for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), registering the
resale from time to time of the Registrable Securities and shall use reasonable
best efforts to cause such Registration Statement to become effective as soon as
practicable following the date hereof and remain effective until the earlier of
(i) the date on which all Registrable Securities have been sold pursuant to the
Registration Statement, and (ii) the second anniversary of the date hereof;
provided, that USA may suspend the effectiveness of such Registration Statement
if and only for so long as (i) the situation described in subsection 3(f)(i)
exists or (ii) USA determines that such registration would require premature
disclosure of material information relating to a pending corporate development;
provided, further, that (i) any period of continuous suspension shall not exceed
twenty (20) business days, and (ii) the Registration Statement shall not be
suspended for an aggregate of greater than sixty (60) business days in any
calendar year. USA shall promptly notify the Shareholders of the effective date
of the Registration Statement by e-mail to the address set forth on the
signature page hereof. USA's obligation under this Section 1.1 is subject to the
Shareholders' timely cooperation in supplying information in connection with the
preparation and filing of the Registration Statement.
1.2 REGISTRABLE SECURITIES. For purposes of this Agreement "Registrable
Securities" shall mean only those shares of Common Stock acquired by the
Shareholders in the Transaction or transferred to Affiliates thereof, and any
shares received in connection with such shares of Common Stock as a result of a
stock split, stock dividend, or similar transaction. For purposes of this
Agreement, an "Affiliate" of a Shareholder shall mean (i) any person directly or
indirectly controlling, controlled by, or under common control with such
Shareholder (ii) with respect to a Shareholder that is a fund or account, shall
also include any fund or account managed on a discretionary basis by the same
manager that manages such Shareholder.
1.3 REGISTRATION STATEMENT EXPENSES. All fees, disbursements and
out-of-pocket expenses and costs incurred by USA in connection with the
preparation of the Registration Statement under this Section 1 and in complying
with applicable securities and blue sky laws shall be borne by USA, including,
without limitation, printing costs, listing fees and SEC filing fees applicable
to the Registrable Securities being registered and all attorneys' fees of USA.
The Shareholders shall bear all costs and expenses incurred by them applicable
to the Registrable Securities being registered, including any brokerage
discounts, fees or commissions relating thereto, and the fees and expenses of
their respective counsel.
1.4 SHAREHOLDER REVIEW OF REGISTRATION STATEMENT AND COMMENT LETTERS.
Each Shareholder and its respective counsel ("Counsel") shall have a reasonable
period, not to exceed five (5) business days, to review the proposed
Registration Statement or any
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amendment thereto, prior to filing with the SEC, and USA shall provide Counsel
with copies of any comment letters received from the SEC with respect thereto
within two (2) business days of receipt thereof.
1.5 QUALIFICATIONS. USA shall qualify any of the Registrable Securities
for sale in such states as Counsel reasonably designates and shall furnish
indemnification in the manner provided in Section 4 hereof. However, USA shall
not be required to qualify in any state which will require an escrow or other
restriction relating to USA and/or the sellers, or which will require USA to
qualify to do business in such state or require USA to file therein any general
consent to service of process in or otherwise subject USA or its subsidiaries to
any adverse business or financial consequences, including, without limitation,
being subject to state income or other state taxes.
1.6 MANNER OF SALE. The Shareholders shall not be permitted to use the
Registration Statement for purposes of an underwritten offering without the
consent of USA.
1.7 BLACKOUT PERIODS. If at any time after the Registration Statement
is effective a Shareholder in good faith intends to sell, transfer or otherwise
dispose of any Registrable Securities pursuant to the Registration Statement,
the Shareholder or its Counsel shall provide USA with written notice of the
proposed date of sale, transfer or disposition (the "Sale Date") no later than 3
business days prior to the proposed sale date (the "Sale Notice"). If within 48
hours of its receipt of a Sale Notice, USA in good faith notifies the
Shareholder or Counsel that the Registration Statement has been suspended
pursuant to the provisions of Section 1.1, the Shareholder shall suspend any
sales, transfers or other dispositions until receipt of notice that the
suspension has been lifted. In the event that a pending corporate development
that gave rise to a suspension under Section 1.1 has been terminated or publicly
disclosed, USA will promptly as practicable take such action as is necessary to
allow the sale of the Registrable Securities under the Registration Statement.
Upon termination of any suspension period under Section 1.1, USA shall send
immediate notice thereof to any Shareholder that has sent USA a Sale Notice.
Nothing herein shall be deemed to obligate a Shareholder to sell all or any of
its Registrable Securities.
2. COOPERATION WITH USA; REPRESENTATION. Each Shareholder shall cooperate
with USA in connection with this Section 2 by timely supplying all information
reasonably requested by USA (which shall include all information regarding the
Shareholder and the proposed manner of sale of the Registrable Securities
required to be disclosed in the Registration Statement) and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Securities. A Shareholder's obligations under this
Section 2 shall include compliance by the Shareholder with respect to
information to be provided by Shareholder in connection with the Registration
Statement, the prospectus (the "Prospectus") related thereto, or any supplement
or amendment thereto, with the provisions of Sections 3(a), (f) and (g). Each
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Shareholder represents and warrants to USA that any sale by the Shareholder of
its Registrable Securities, whether pursuant to a Registration Statement or
otherwise, shall be made in compliance with applicable federal, state and
foreign securities laws, to the extent such compliance is within the control of
the Shareholder.
3. REGISTRATION PROCEDURES. If and whenever USA is required by any of the
provisions of this Agreement to effect the registration of any of the
Registrable Securities under the Securities Act, USA shall (except as otherwise
provided in this Agreement), as expeditiously as possible, subject to the
Shareholder's assistance and cooperation as reasonably required:
(a) (i) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the Prospectus as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration
statement whenever the Shareholders shall desire to sell or otherwise
dispose of the Registrable Securities (including prospectus supplements
with respect to the sales of securities from time to time in connection
with a registration statement pursuant to Rule 415 promulgated under
the Securities Act) and (ii) take all lawful action such that each of
(A) the Registration Statement and any amendment thereto does not, when
it becomes effective, 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 and (B) the Prospectus, and
any amendment or supplement thereto, does not at any time during the
period in which the Registration Statement is effective include 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, provided, however, that the obligations of USA set forth in
this subparagraph shall not apply to the extent that such statement or
omission relates to information to be provided by a Shareholder, so
long as USA has included such information as provided by such
Shareholder (or failed to include it due to such Shareholder's failure
to provide such information);
(b) (i) prior to the filing with the SEC of any Registration
Statement (including any amendments thereto) and the distribution or
delivery of the Prospectus (including any supplements thereto), provide
draft copies thereof to Counsel and (ii) furnish to Counsel such
numbers of copies of the Prospectus (including a preliminary prospectus
or any amendment or supplement to the Prospectus), as applicable, in
conformity with the requirements of the Securities Act, and such other
documents, as Counsel may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities; and USA
hereby consents to the use of such Prospectus or each amendment or
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supplement thereto by each Shareholder in connection with the offering
and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto in the manner set forth therein;
(c) comply with the blue sky laws with respect to the Registrable
Securities, and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Shareholders to
consummate the public sale or other disposition in such jurisdiction of
the Registrable Securities, except that USA shall not for any such
purpose be required to qualify to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified or to file therein
any general consent to service of process;
(d) prepare and file with the SEC such amendments and supplements
to the Registration Statement and the Prospectus as may be necessary
(i) to reflect a change in a "Shareholder" hereunder that results from
a transfer of Registrable Securities to an Affiliate that is not a sale
under the Registration Statement and (ii) to reflect any change in
information about a Shareholder contained in the Registration Statement
or Prospectus, in each case as promptly as practicable after receipt of
written notice of the change from the applicable Shareholder, and, in
the event of an amendment, take all reasonable actions to ensure that
such amendment becomes effective as promptly as practicable;
(e) list such Registrable Securities on each securities exchange
or quotation system on which similar securities issued by USA are then
listed, if the listing of such Registrable Securities is then permitted
under the rules of such exchange or quotation system or if the listing
requirements are waived, or list such Registrable Securities on a
mutually agreeable securities exchange or quotation system if the
listing of such Registrable Securities is then permitted under the
rules of such exchange or quotation system or if the listing
requirements are waived. If listing on an exchange cannot be
immediately effected, then it shall be accomplished as soon as
possible;
(f) (i) notify Counsel as provided in Section 1.7 at any time
when the Prospectus is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge as a
result of which the Prospectus, as then in effect, includes an 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 not
misleading in the light of the circumstances then existing, and (ii)
prepare and file a curative amendment or curative supplement under
Section 3(a) as quickly as commercially possible;
(g) as promptly as practicable after becoming aware of such
event, notify Counsel of the issuance by the SEC or any state authority
of any stop order or other suspension of the effectiveness of the
Registration Statement at the
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earliest possible time and take all lawful action to effect the
withdrawal, rescission or removal of such stop order or other
suspension;
(h) maintain a transfer agent for its securities; and
(i) cooperate with each Shareholder to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement and cause such
certificates to be registered in such names as the Shareholder may
request in writing; provided however, that the Shareholder shall be
responsible to pay any applicable transfer fees and taxes.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 INDEMNIFICATION BY USA. USA agrees to indemnify and hold harmless
the Shareholders and each person, if any, who controls a Shareholder within the
meaning of the Securities Act (collectively with the Shareholder, the
"Distributing Shareholder") against any losses, claims, damages or liabilities,
joint or several (which shall, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees), to which the Distributing Shareholder may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, or any related preliminary prospectus,
the Prospectus or amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein 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; PROVIDED, HOWEVER, that
USA will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, preliminary prospectus, the Prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, information
furnished to USA in writing by the Distributing Shareholder specifically for use
in the preparation thereof. This Section 4.1 shall not inure to the benefit of
any Distributing Shareholder with respect to any person asserting such loss,
claim, damage or liability who purchased the Registrable Securities which are
the subject thereof if the Distributing Shareholder failed to send or give a
copy of the Prospectus, or any amendment or supplement thereto, to such person
at or prior to the written confirmation to such person of the sale of such
Registrable Securities, where the Distributing Shareholder was obligated to do
so under the Securities Act or the rules and regulations promulgated thereunder
and where the document required to be distributed would have corrected the
misstatement or alleged misstatement or the omission or alleged omission. This
indemnity agreement, together with the contribution agreement contained herein,
shall be in addition to any liability which USA may otherwise have with respect
to the matters described herein.
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4.2 INDEMNIFICATION BY A SHAREHOLDER. Each Shareholder agrees that it
will, severally and not jointly, indemnify and hold harmless USA, and each
officer, director of USA or person, if any, who controls USA within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several (which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees) to which USA or any such officer, director or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any related
preliminary prospectus, the Prospectus or amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of circumstances under which they were made not
misleading, but in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, preliminary prospectus, the Prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written information
furnished to USA by such Shareholder specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which the
Shareholder may otherwise have to USA with respect to the matters described
herein.
4.3 CONTRIBUTION. In order to provide for just and equitable
contribution under the Securities Act in any case in which the indemnification
provided in Section 4.1 or 4.2 is for any reason unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities, then USA and the applicable Shareholder shall contribute to the
payment or satisfaction of the aggregate losses, claims, damages or liabilities
to which they may be subject (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations, which shall include both the relative fault
of the parties and the relative benefits to the parties. The relative fault
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 USA on the one hand
or the applicable Shareholder on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. USA and the Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 4.3 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 4.3. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 4.3 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
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investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.3, no Shareholder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such Shareholder exceeds the amount of
damages that such Shareholder 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4.3, each person, if any, who controls
a Shareholder, within the meaning of the Securities Act, shall have the same
rights to contribution as the Shareholders and each person who controls the
Company, within the meaning of the Securities Act, shall have the same rights to
contribution as the Company.
4.4 NOTIFICATION. Promptly after receipt by an indemnified party under
this Section 4 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 4, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party except to the extent of actual prejudice demonstrated by the indemnifying
party. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the defense
thereof, subject to the provisions herein stated, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 4 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall not be at the
expense of the indemnifying party (nor shall such party control the defense
thereof) if the indemnifying party has assumed the defense of the action with
counsel reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER,
that the fees and expenses of counsel to the indemnified party shall be at the
expense of the indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
Distributing Shareholder and USA and the indemnified party shall have been
advised by such counsel in writing that there may be one or more legal defenses
available to the indemnifying party in conflict with any legal defenses which
may be available to the indemnified 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, it being understood,
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however, that the indemnifying party shall, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable only for the reasonable fees and expenses of one separate firm of
attorneys for the indemnified party, which firm shall be designated in writing
by the indemnified party and be approved by the indemnifying party). No
settlement of any action against an indemnified party shall be made without the
prior written consent of the indemnified party, which consent shall not be
unreasonably withheld, PROVIDED, FURTHER, that a settlement which does not
include an admission of liability by the indemnified party nor the payment of
any monetary or other damages by such party shall not require such consent.
4.5 INDEMNIFICATION EXPENSES. All fees and expenses of the indemnified
party (including reasonable costs of defense and investigation in a manner not
inconsistent with this Section and all reasonable attorneys' fees and expenses)
shall be promptly paid to the indemnified party, as incurred, within ten (10)
business days of written notice thereof (accompanied by customary documentation
detailing such expenses) to the indemnifying party; PROVIDED, HOWEVER, that the
indemnifying party may require such indemnified party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such indemnified party is not entitled to indemnification hereunder.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each Shareholder
hereby represents and warrants to USA as follows:
5.1 DUE ORGANIZATION. If the Shareholder is a corporation, the
Shareholder is a corporation duly organized, is validly existing and is in good
standing under the laws of its jurisdiction of formation. If the Shareholder is
a partnership or limited liability company, the shareholder is duly organized,
validly existing and in good standing under the laws of the jurisdiction where
it is organized. If the Shareholder is an individual, the Shareholder has the
legal capacity to enter into this Agreement.
5.2 POWER; DUE AUTHORIZATION; BINDING AGREEMENT. The Shareholder has
full legal capacity, power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Shareholder and constitutes a valid and binding agreement of
the Shareholder, enforceable against the Shareholder in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting or relating to the enforcement of creditors
rights generally and to general principles of equity.
5.3 NO CONFLICTS. The execution and delivery of this Agreement by the
Shareholder does not, and the performance of the terms of this Agreement by the
Shareholder will not, (a) require the Shareholder or any of its affiliates to
obtain the consent or approval of, or make any filing with or notification to,
any governmental or regulatory authority, domestic or foreign, (b) require the
consent or approval of any other
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person pursuant to any material agreement, obligation or instrument binding on
the Shareholder or its properties and assets, (c) conflict with or violate any
organizational document or law, rule, regulation, order, judgment or decree
applicable to the Shareholder or pursuant to which any of its or its affiliates'
respective properties or assets are bound or (d) violate any other agreement to
which the Shareholder or any of its affiliates is a party including, without
limitation, any voting agreement, stockholders agreement, irrevocable proxy or
voting trust, except for any consent, approval, filing or notification which has
been obtained as of the date hereof or the failure of which to obtain, make or
give would not, or any conflict or violation which would not, prevent, delay or
materially adversely effect the consummation of the transactions contemplated by
this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF USA.
6.1 REPRESENTATIONS AND WARRANTIES. USA hereby represents and warrants
to the Shareholders as follows: USA is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware. USA has
full corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation by USA of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of USA, and no
other proceedings on the part of USA are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by USA and constitutes a valid and
binding agreement of USA, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors rights generally and to general principles of equity.
6.2 NO CONFLICTS. The execution and delivery of this Agreement by USA
does not, and the performance of the terms of this Agreement by USA will not,
(a) require USA or any of its affiliates to obtain the consent or approval of,
or make any filing with or notification to, any governmental or regulatory
authority, domestic or foreign (other than the requirements under the Securities
Act and state securities laws with respect to the Registration Statement and the
sale of the Registrable Securities thereunder), (b) require the consent or
approval of any other person pursuant to any material agreement, obligation or
instrument binding on the USA or its properties and assets, (c) conflict with or
violate any organizational document or law, rule, regulation, order, judgment or
decree applicable to USA or pursuant to which any of its or its affiliates'
respective properties or assets are bound or (d) violate any other agreement to
which USA or any of its affiliates is a party including, without limitation, any
registration rights agreement, except in each case for any consent, approval,
filing or notification which has been obtained as of the date hereof or the
failure of which to obtain, make or give would not, or any conflict or violation
which would not, have a material adverse affect on the
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Company or prevent, materially delay or materially adversely affect the
consummation of the transactions contemplated by this Agreement.
7. MISCELLANEOUS.
7.1 FURTHER ASSURANCES. From time to time, at the request of USA or a
Shareholder and without further consideration, the Shareholders or USA,
respectively, shall execute and deliver such additional documents and take all
such further action as may be necessary or desirable to consummate and make
effective the transactions contemplated by this Agreement.
7.2 SURVIVAL. The representations and warranties made herein shall not
survive the termination of this Agreement. Sections 4.1, 4.2, 4.3, 4.4, 4.5 and
7.2 of this Agreement shall survive any termination of this Agreement.
7.3 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; ASSIGNMENT. This
Agreement, together with the Acquisition Agreement, constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Except as set forth
in the preceding sentence, nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement. This Agreement
shall not be assigned or transferred, whether by merger, consolidation, asset
disposition, operation of law or otherwise, and shall be binding upon and inure
solely to the benefit of each party hereto.
7.4 AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto. Notwithstanding the foregoing, an
Affiliate of a Shareholder that acquires any of the Registrable Securities
pursuant to the terms and conditions of this Agreement shall be entitled to the
benefits and burdens of this Agreement as though such Affiliate were a signatory
hereto.
7.5 NOTICES. All notices, requests and other communications to any
party under this Agreement shall be in writing (including a facsimile or similar
writing) and shall be given to a party hereto at the address or facsimile number
set forth for such party on the signature page hereof or as such party shall at
any time otherwise specify by notice to each of the other parties to such
agreement or instrument. Each such notice, request or other communication shall
be effective (i) if given by facsimile, at the time such facsimile is
transmitted and the appropriate confirmation is received (or, if such time is
not during a business day, at the beginning of the next such business day), (ii)
if given by mail, five business days (or, if to an address outside the United
States, ten calendar days) after such communication is deposited in the United
States mails with first-class postage prepaid, addressed as aforesaid, or (iii)
if given by any other means, when delivered at the
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address specified pursuant hereto. Further, all such documents to be delivered
to USA shall be copied to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
7.6 GOVERNING LAW.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.
(b) Each party hereto irrevocably submits to the jurisdiction of
any Delaware state court or any federal court sitting in the State of
Delaware in any action arising out of or relating to this Agreement,
and hereby irrevocably agrees that all claims in respect of such action
may be heard and determined in such Delaware state or federal court.
Each party hereto hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The parties hereto further
agree, to the extent permitted by law, that final and unappealable
judgment against any of them in any action or proceeding contemplated
above shall be conclusive and may be enforced in any other jurisdiction
within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and
amount of such judgment.
(c) To the extent that any party hereto has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each party hereto hereby irrevocably
waives such immunity in respect of its obligations with respect to this
Agreement.
(d) Each party hereto waives, to the fullest extent permitted by
applicable laws, any right it may have to a trial by jury in respect of
any action, suit or proceeding arising out of or relating to this
Agreement. Each party hereto certifies that it has been induced to
enter into this Agreement by, among other things, the mutual waivers
and certifications set forth above in this Section.
7.7 REMEDIES. Each of the Shareholders and USA recognize and
acknowledge that a breach by it of any covenants or agreements contained in this
Agreement will cause the other party to sustain irreparable injury and damages,
for which money damages
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would not provide an adequate remedy, and therefore each of the Shareholders and
USA agrees that in the event of any such breach by another party hereto, the
Shareholders or USA, as the case may be, shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief.
7.8 COUNTERPARTS. This Agreement may be executed by facsimile and in
two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same Agreement.
7.9 DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
7.10 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
7.11 TERMINATION. This Agreement shall terminate if the Transaction is
not completed on or before May 7, 2002, unless extended by the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed and delivered as of the day and year first
above written.
USA NETWORKS, INC.
By:
-----------------------------
Name:
Title:
ADDRESS FOR NOTICES:
USA NETWORKS, INC.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Office of the General Counsel
Fax: 000 000 0000
NAME OF SHAREHOLDER: ADDRESS FOR NOTICES (Please Print):
------------------------------
SIGNATURE: Attention:
---------------------------------
By: Telecopy:
-------------------------- ---------------------------------
Name:
Title: E-mail (Section 1.1):
----------------------
Exact Name to appear on Stock Certificate: See accompanying letter
Number of Registrable Shares:
-----------------------
[SHAREHOLDER SIGNATURE PAGES - CONTINUED]
The Shareholder hereby provides the following additional information:
(a) Excluding the shares of Common Stock purchased in the Transaction,
set forth below is the number of shares of Common Stock and options rights or
warrants of USA Networks, Inc. (the "Company") ("Options" and together with the
Common Stock, "Securities") which the Shareholder BENEFICIALLY OWNS or of which
the Shareholder is the record owner on the date hereof. Please refer to the
definition of BENEFICIAL OWNERSHIP on EXHIBIT A attached hereto. If none, please
so state.
Number of Shares: _________________ (excluding the shares purchased in the
Transaction)
Number of Options: _________________
Please indicate by an asterisk (*) above if the Shareholder disclaims
"BENEFICIAL OWNERSHIP" of any of the above listed Securities, and indicate in
response to question (b) below who has beneficial ownership.
(b) If the Shareholder disclaims "BENEFICIAL OWNERSHIP" in question
(a), please furnish the following information with respect to the person(s)
other than the Shareholder who is the beneficial owner(s) of the Securities in
question. If not applicable, please check box: / /
Name of Beneficial Owner:____________________________________
Relationship to the Shareholder:______________________________
Number of Securities Beneficially Owned:______________________
NAME OF SHAREHOLDER:____________________________
(c) Are any of the Securities listed in response to question (a) the
subject of a voting agreement, contract or other arrangement whereby others have
voting control over, or any other interest in, any of the Shareholder's
Securities?
/ / Yes / / No
If the answer is "Yes", please give details:___________________________________.
(d) Please describe each position, office or other material
relationship which the Shareholder has had with the Company or any of its
affiliates, including any Subsidiary of the Company, within the past three
years. Please include a description of any loans or other indebtedness, and any
contracts or other arrangements or transactions involving a material amount,
payable by the Shareholder to the Company or any of its affiliates, including
its Subsidiaries, or by the Company or any of its affiliates, including its
Subsidiaries, to the Shareholder. "Affiliates" of the Company include its
directors and executive officers, and any other person controlling or controlled
by the Company. IF NONE, PLEASE SO STATE.
Answer:
(e) Please provide the name and address of other person(s), if any, to
whom any proxy statements, registration statements (including notice of
effectiveness thereof), prospectuses or similar documents and information should
be delivered by the Company on behalf of the Shareholder in the future, with
respect to the Shareholder's shares:
---------------------------------- --------------------------------
---------------------------------- --------------------------------
---------------------------------- --------------------------------
---------------------------------- --------------------------------
(f) Please advise of special stock certificate delivery requirements
for closing, if any:
(g) Please advise if a NASD member has placed with you the Shares being
purchased hereunder: (Name of Member:) _________________________________________
By: Dated:
-----------------------------
Name:
EXHIBIT A
Explanation of "BENEFICIAL OWNERSHIP"
Securities that are subject to a power to vote or dispose are deemed
beneficially owned by the person who holds such power, directly or indirectly.
This means that the same securities may be deemed beneficially owned by more
than one person, if such power is shared. In addition, the beneficial ownership
rules provide that shares which may be acquired upon exercise of an option or
warrant, or which may be acquired upon the termination of a Seller,
discretionary account or similar arrangement, which can be effected within a
period of 60 days from the date of determination, are deemed to be
"beneficially" owned. Furthermore, shares that are subject to rights or powers
even though such rights or powers to acquire are not exercisable within the
60-day period may also be deemed to be beneficially owned if the rights or
powers were acquired "with the purpose or effect of changing or influencing the
control of the issuer or in connection with or as a participant in any
transaction having such purpose or effect."
In determining whether securities are "beneficially owned," benefits
which are substantially equivalent to those of ownership by virtue of any
contract, understanding, relationship, agreement or other arrangement should
cause the securities to be listed as "beneficially owned."
Thus, for example, securities held for a person's benefit in the name
of others or in the name of any estate or Seller in which such person may be
interested should also be listed. Securities held by a person's spouse, children
or other members of such person's family who are such person's dependents or who
live in such person's household should be listed as "beneficially owned" unless
such person does not enjoy benefits equivalent to those of ownership with
respect to such securities.
If a person has a proprietary or beneficial interest in a controlled
corporation, partnership, personal holding company, Seller or estate which owns
of record or beneficially any securities, such person should state the amount of
such securities owned by such controlled corporation, partnership, personal
holding company, Seller or estate in lieu of allocating such person's
proprietary interest, and by note or otherwise, please indicate that. In any
case, the name of the controlled corporation, partnership, personal holding
company, or estate must be stated.
In all cases the nature of the beneficial ownership should be stated.
