REGISTRATION RIGHTS AGREEMENT
among
USA NETWORKS, INC.
USANI Sub LLC
and
STYLECLICK, INC.
-----------------------------------
Dated as of July 27, 2000
----------------------------------
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 27, 2000, (the
"AGREEMENT"), between Styleclick, Inc., a Delaware corporation (the "COMPANY"),
USA Networks, Inc., a Delaware corporation ("USAI") and USANi Sub LLC, a
Delaware limited liability company ("PARENT").
This Agreement is made in connection with the Amended and Restated
Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of March 23,
2000, among Parent, Internet Shopping Network LLC, a Delaware limited liability
company, and Xxxxxxxxxx.xxx Inc., a California corporation, pursuant to which
Parent and USAi will receive shares of Class B Common Stock, par value $0.01 per
share, of the Company (the "CLASS B COMMON STOCK"). In order to induce Parent to
execute the Merger Agreement, and USAi to execute the Credit Agreement (as
defined in the Merger Agreement) the Company has agreed to provide registration
rights with respect to the Registrable Securities (as hereinafter defined) as
set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"APPROVED UNDERWRITER" has the meaning assigned such term in
Section 3(f).
"APPROVED UNDERWRITER AMOUNT" has the meaning assigned such
term in Section 3(d).
"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.
"CLASS A COMMON STOCK" means Class A Common Stock, par value
$0.01 per share, of the Company.
"COMMON STOCK" means Class A Common Stock and Class B Common
Stock.
"COMPANY UNDERWRITER" has the meaning assigned such term in
Section 4(a).
2
"DEMAND REGISTRATION" has the meaning assigned such term in
Section 3(a).
"DESIGNATED HOLDER" means USAi, Parent and any of their
respective transferees to whom Registrable Securities have been transferred
other than a transferee to whom such securities have been transferred pursuant
to a registration statement under the Securities Act or Rule 144 under the
Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"HOLDER" has the meaning assigned such term in Section 2(b).
"HOLDERS' COUNSEL" means (a) with respect to any Demand
Registration that has been requested pursuant to Section 3, counsel selected by
the Initiating Holders holding more than 50% of the Registrable Securities held
by all Initiating Holders being registered in such registration, and (b) with
respect to a request for registration of Registrable Securities pursuant to
Section 4, counsel selected by the Holders holding more than 50% of the
Registrable Securities held by all Holders being registered in such
registration.
"INDEMNIFIED PARTY" has the meaning assigned such term in
Section 8(c).
"INDEMNIFYING PARTY" has the meaning assigned such term in
Section 8(c).
"INITIATING HOLDERS" has the meaning assigned to such term in
Section 3(a).
"INSPECTOR" has the meaning assigned such term in Section
6(a)(viii).
"NASD" has the meaning assigned such term in Section 6(a)(xv).
"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.
"REGISTRABLE SECURITIES" means each of the following: (a) any
shares of Class A Common Stock held of record by any party hereto on or after
the date hereof and (b) any shares of Class A Common Stock issued or issuable in
respect
3
of shares of Class B Common Stock held of record by any party hereto on or after
the date hereof or (c) Class A Common Stock issued, issuable or held pursuant to
clause (a) and (b) 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.
"REGISTRATION EXPENSES" has the meaning assigned such term in
Section 7.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement,
dated as of the date hereof, among the Company, Parent, USAi and the other
stockholders named therein, as the same may be amended from time to time in
accordance with its terms.
"TOTAL SECURITIES" has the meaning assigned such term in
Section 4(a).
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) REGISTRABLE SECURITIES. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a registration statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective registration
statement or (ii) the entire amount of Registrable Securities proposed to be
sold in a single sale are or, in the opinion of counsel satisfactory to the
Company and the Holder of such Registrable Securities, each in their reasonable
judgment, may be, distributed to the public pursuant to Rule 144 (or any
successor provision then in effect) under the Exchange Act.
(b) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to
be a holder of Registrable Securities (a "HOLDER") whenever such Person (i) is a
Designated Holder and (ii) owns of record Registrable Securities, or holds an
option to purchase, or a security convertible into or exercisable or
exchangeable for, Registrable Securities, whether or not such purchase or
conversion has actually been effected and disregarding any legal restrictions
upon the exercise of such rights. If the Company receives conflicting
instructions, notices or elections from two or more persons with respect to the
same Registrable Securities, the Company may act upon the basis of the
instructions, notice or election received from the registered owner of such
Registrable
4
Securities. Registrable Securities issuable upon exercise of an option or upon
conversion of another security shall be deemed outstanding for the purposes of
this Agreement.
3. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. At any time after 18
months from the Effective Date (as defined in the Merger Agreement), the
Designated Holders holding more than 50% of the Registrable Securities held by
all of the Designated Holders (the "INITIATING HOLDERS") may request the
registration of Registrable Securities under the Securities Act, and under the
securities or blue sky laws of any jurisdiction designated by such holder or
holders (each such registration under this Section 3(a) that satisfies the
requirements set forth in Section 3(b) is referred to herein as a "DEMAND
REGISTRATION"). Notwithstanding the foregoing, (i) the Company will not be
required to effect a Demand Registration within the period beginning on the
effective date of a registration statement filed by the Company on its behalf
and ending on the expiration of any lock-up period reasonably required by the
underwriters, if any, in connection therewith, and (ii) in no event shall the
Company be required to effect more than four (4) Demand Registrations. For
purposes of clause (ii) of the preceding sentence, two or more registrations
filed in response to one demand shall be counted as one registration statement.
Each request for a Demand Registration by the Initiating Holders shall specify
the amount of the Registrable Securities proposed to be sold, the intended
method of disposition thereof and the jurisdictions in which registration is
desired. Upon a request for a Demand Registration, the Company shall promptly
take such steps as are necessary or appropriate to prepare for the registration
of the Registrable Securities to be registered. Within fifteen (15) days after
the receipt of such request, the Company shall give written notice thereof to
all other Designated Holders holding Registrable Securities and include in such
registration all Registrable Securities held by a Designated Holder holding
Registrable Securities from whom the Company has received a written request for
inclusion therein at least ten (10) days prior to the filing of the registration
statement. Each such request will also specify the number of Registrable
Securities to be registered, the intended method of disposition thereof and the
jurisdictions in which registration is desired. The Company, subject to Sections
3(d) and 3(e), shall be entitled to include in any registration statement and
offering made pursuant to a Demand Registration, authorized but unissued shares
of Class A Common Stock, shares of Class A Common Stock held by the Company as
treasury shares or shares of Class A Common Stock held by stockholders other
than the Designated Holders holding Registrable Securities; PROVIDED that such
inclusion shall be permitted only to the extent that it is pursuant to and
subject to the terms of the underwriting agreement or arrangements, if any,
entered into by the Initiating Holders exercising the Demand Registration
rights.
5
(b) EFFECTIVE DEMAND REGISTRATION. The Company shall use its
best efforts to cause any such Demand Registration to become effective not later
than ninety (90) days after it receives a request under Section 3(a). A
registration requested pursuant to Section 3(a) hereof shall not count as one of
the four Demand Registrations to which the Designated Holders are entitled
hereunder unless Registrable Securities are sold pursuant to such demand or such
registration statement remains effective for at least one hundred and twenty
(120) days under Section 3(a).
(c) EXPENSES. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses in connection
therewith, whether or not such requested Demand Registration becomes effective.
(d) UNDERWRITING PROCEDURES. If the Initiating Holders holding
more than 50% of the Registrable Securities held by all Initiating Holders to be
included in the requested Demand Registration so elect, the offering of
Registrable Securities pursuant to such requested Demand Registration shall be
in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter selected in accordance with Section 3(f). In such event, if the
Approved Underwriter advises the Company in writing that, in its opinion, the
aggregate amount of Registrable Securities requested to be included in such
offering is sufficiently large as to have a material adverse effect on the
success of such offering, then the Company shall include in such registration
only the aggregate amount of Registrable Securities that in the opinion of the
Approved Underwriter may be sold without any such effect on the success or
pricing of such offering (the "APPROVED UNDERWRITER AMOUNT"), and each
Designated Holder shall be entitled to have included in such registration
Registrable Securities equal to its pro rata portion of the Approved Underwriter
Amount, as based on the amounts of Registrable Securities sought to be
registered by the Designated Holders in their requests for participation in the
requested Demand Registration. To the extent that the number of Registrable
Securities to be included by the Designated Holders is less than the Approved
Underwriter Amount, securities that the Company proposes to register may,
subject to the limitations contained in Section 3(e), also be included.
(e) PRORATION. In any case in which an offering is in the form
of a firm commitment underwritten offering and the number of Registrable
Securities to be included by the Designated Holders is less than the Approved
Underwriter Amount, if the Approved Underwriter of such offering advises the
Company in writing that in its opinion the number of securities proposed to be
sold in such offering by Persons (including the Company) other than the
Designated Holders exceeds the number thereof that can be sold in such offering
without any effect on the success or pricing of such offering, the Company will
include in such registration all of the Registrable Securities requested to be
sold by the Designated Holders. Thereafter, the Company may include, to the
extent the Approved Underwriter Amount is not exceeded, the number
6
of securities to be offered for the account of the Company and the number of
securities, if any, to be offered for the account of the stockholders of the
Company other than the Designated Holders.
(f) SELECTION OF UNDERWRITERS. If any requested Demand
Registration is in the form of an underwritten offering, the Initiating Holders
holding more than 50% of the Registrable Securities held by all Initiating
Holders to be included in the requested Demand Registration shall select and
obtain an investment banking firm of national reputation to act as the managing
underwriter of the offering (the "APPROVED UNDERWRITER").
4. PIGGY-BACK REGISTRATION.
(a) PIGGY-BACK RIGHTS. If, at any time after 18 months from
the Effective Date (as defined in the Merger Agreement), the Company proposes to
file a registration statement under the Securities Act with respect to an
offering by the Company of any class of security (other than a registration
statement on Form S-4 or Form S-8 (or any successor forms thereto)) under the
Securities Act, then the Company shall give written notice of such proposed
filing to each of the Holders at least thirty (30) 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 such Holders the opportunity
to register the number of Registrable Securities as each such Holder may
request. The Company shall use its reasonable best efforts (within ten (10) days
of the notice provided for in the preceding sentence) to cause the managing
underwriter or underwriters of an underwritten offering proposed by the Company
(the "COMPANY UNDERWRITER") to permit the Holders who have requested to
participate in the registration for such offering to include such Registrable
Securities 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 delivers a written opinion to the Holders of Registrable
Securities that the total amount of securities which such Holders and the
Company intend to include 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 securities proposed to be included in such
registration by all Holders shall be reduced pro rata based on the number of
Registrable Securities held by all Holders participating in such registration to
the extent necessary to reduce the Total Securities to the amount recommended by
the Company Underwriter.
(b) PRIORITY OF REGISTRATIONS. If the Company proposes to
register securities pursuant to Section 4(a) hereof on or prior to the same day
that the Designated Holders request a registration pursuant to Section 3(a)
hereof, then the Company's proposed registration shall be given priority.
7
(c) EXPENSES. The Company shall bear all Registration Expenses
in connection with any registration pursuant to this Section 4, whether or not
such registration becomes effective.
5. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS. To the extent not
inconsistent with applicable law, each Holder agrees not to effect any public
sale or distribution of any Registrable Securities being registered or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act,
during the ninety (90) day period beginning on the effective date of any Demand
Registration or registration pursuant to Section 4 or other underwritten
offering (except as part of such registra tion), if and to the extent requested
by any other Holder, in the case of a non- underwritten public offering, or if
and to the extent requested by the Approved Underwriter or the Company
Underwriter, in the case of an underwritten public offering.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public sale or distribution of any of its securities
for its own account (except pursuant to registrations on Form S-4 or Form S-8
(or any successor forms thereto) under the Securities Act) during the ninety
(90) day period beginning on the later of (i) the effective date of any
registration statement in which the Holders are participating and (ii) the
commencement of a public distribution of Registrable Securities pursuant to such
registration statement.
6. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 or 4 of this
Agreement, the Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the SEC (in any event not
later than thirty (30) Business Days after receipt of a request to file a
registration statement with respect to Registrable Securities) a registration
statement on any form on which registration is requested for which the Company
then qualifies, which counsel for the Company and Holders' Counsel shall deem
appropriate and which shall be available for the sale of such Registrable
Securities in accordance with the intended method of distribution thereof, and
use its best efforts to cause such registration statement to become effective;
PROVIDED, HOWEVER, that before filing a registration
8
statement or prospectus or any amendments or supplements thereto, the Company
shall (A) provide Holders' Counsel and any other Inspector with an adequate and
appropriate opportunity to participate in the preparation of such registration
statement and each prospectus included therein (and each amendment or supplement
thereto) to be filed with the SEC, which documents shall be subject to the
review of Holders' Counsel, and (B) notify Holders' Counsel and each seller of
Registrable Securities pursuant to such registration statement of any stop order
issued or threatened by the SEC and take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than 120 days, and comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a registration statement,
copies of such registration statement as it is proposed to be filed, and
thereafter such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto), the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as each such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Securities may request, and to
continue such qualification in effect in each such jurisdiction for as long as
is permissible pursuant to the laws of such jurisdiction, or for as long as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; PROVIDED, HOWEVER, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 6(a)(iv), (B) subject itself to
taxation in any such jurisdic tion or (C) consent to general service of process
in any such jurisdiction;
(v) use its best efforts to obtain all other
approvals, covenants, exemptions or authorizations from such governmental
agencies or
9
authorities as may be necessary to enable the sellers of such Registrable
Securities to consummate the disposition of such Registrable Securities;
(vi) notify each seller of Registrable Securities at
any time when a prospectus relating thereto is required to be delivered under
the Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and the Company shall
promptly prepare a supplement or amendment to such prospectus and furnish to
each such seller a reasonable number of copies of a supplement to or amendment
of such prospectus as may be necessary so that, after delivery to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3 or
4) and take such other actions as are reasonably required in order to expedite
or facilitate the disposition of such Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursu ant to such registration statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "INSPECTOR" and, collectively, the "INSPECTORS"), all
financial and other records, per tinent corporate documents and properties of
the Company and any subsidiaries thereof as may be in existence at such time
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and any
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such registration statement;
(ix) obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters, as Holders'
Counsel or the managing underwriter reasonably request;
(x) furnish, at the request of any seller of
Registrable Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration or, if such securities are
not being sold through underwriters, on
10
the date the registration statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the Company for
the purposes of such registration, addressed to the underwriters, if any, and to
the seller making such request, covering such legal matters with respect to the
registration in respect of which such opinion is being given as such seller may
reasonably request and as are customarily included in such opinions;
(xi) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable but no later than
fifteen (15) months after the effective date of the registration statement, an
earnings statement covering a period of twelve (12) months beginning after the
effective date of the registration statement, in a manner which satisfies the
provisions of Section 11(a) of the Securities Act;
(xii) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed, subject to the satisfaction of the applicable listing
requirements of each such exchange;
(xiii) keep each seller of Registrable Securities
advised in writing as to the initiation and progress of any registration under
Section 3 or 4 hereunder;
(xiv) provide officers' certificates and other
customary closing documents;
(xv) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(xvi) use its best efforts to take all other steps
necessary to effect the registration of the Registrable Securities contemplated
hereby.
(b) SELLER INFORMATION. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities as
the Company may from time to time reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 6(a)(vi), such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable
11
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 6(a)(vi) and, if so directed by the
Company, such Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Holder's possession, of
the prospectus covering such Registrable Securities which is current at the time
of receipt of such notice. If the Company shall give any such notice, the
Company shall extend the period during which such registration statement shall
be maintained effective pursuant to this Agreement (including the period
referred to in Section 6(a)(ii)) by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(a)(vi)
to and including the date when the Holder shall have received the copies of the
supplemented or amended prospectus contemplated by and meeting the requirements
of Section 6(a)(vi).
7. REGISTRATION EXPENSES. The Company shall pay all expenses (other
than underwriting discounts and commissions) arising from or incident to the
performance of, or compliance with, 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 dis bursements 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 (including any expenses
arising from any special audits incident to or required by any registration or
qualification) and (e) any liability insurance or other premiums for insurance
obtained (which insurance the Company agrees to use its best efforts to obtain
upon the reasonable request of any seller of Registrable Securities) and the
reasonable fees, charges and expenses of any special experts (provided that a
seller of Registrable Securities shall give notice to the Company, as soon as
practicable, of the retention of any such special experts) retained in
connection with any requested Demand Registration or registration pursuant to
Section 4 pursuant to the terms of this Agreement, regardless of whether the
registration statement filed in connection with such registration is declared
effective. In connection with each registration hereunder, the Company shall
reimburse the Holders of Registrable Securities being registered in such
registration for the reasonable fees, charges and disbursements of not more than
one Holders' Counsel. All of the expenses described in this Section 7 are
referred to in this Agreement as "REGISTRATION EXPENSES."
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder, its directors, officers, partners,
employees, advisors and agents, and each Person who controls (within the meaning
of the Securities Act or the Exchange Act) such Holder, to the extent permitted
by law,
12
from and against any and all losses, claims, damages, expenses (including
reasonable costs of investigation and fees, disbursements and other charges of
counsel) or other liabilities resulting from or arising out of or based upon any
untrue, or alleged untrue, statement of a material fact contained in any
registration statement, prospectus or preliminary prospectus or notification or
offering circular (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or arising out of or based upon
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein.
The Company shall also indemnify any underwriters of the Registrable Securities,
their officers, directors and employees, and each Person who controls any such
underwriter (within the meaning of the Securities Act and the Exchange Act) to
the same extent as provided above with respect to the indemnification of the
Holders of Registrable Securities.
(b) INDEMNIFICATION BY HOLDERS. In connection with any
registration in which a Holder is participating pursuant to Section 3 or 4
hereof, each such Holder shall furnish to the Company in writing such
information with respect to such Holder as the Company may reasonably request or
as may be required by law for use in connection with any registration statement
or prospectus to be used in connection with such registration and each Holder
agrees to indemnify and hold harmless the Company, any underwriter retained by
the Company and their respective directors, officers, employees and each Person
who controls (within the meaning of the Securities Act and the Exchange Act) the
Company or such underwriter to the same extent as the foregoing indemnity from
the Company to the Holders (subject to the proviso to this sentence and
applicable law), but only with respect to any such information furnished in
writing by such Holder expressly for use therein; PROVIDED, HOWEVER, that the
liability of any Holder under this Section 8(b) shall be limited to the amount
of the net proceeds received by such Holder in the offering giving rise to such
liability.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give
prompt written notice to the indemnifying party (the "INDEMNIFYING PARTY") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; PROVIDED, that, the failure so to
notify the Indemnifying Party shall not relieve the Indemnifying Party of any
liability that it may have to the Indemnified Party hereunder. If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and
13
satisfactory to such Indemnified Party. The Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the Indemnified Party unless
(i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party
fails to assume the defense of such action with counsel satisfactory to the
Indemnified Party in its reasonable judgment, (iii) the named parties to any
such action (including any impleaded parties) have been advised by such counsel
that either (A) representation of such Indemnified Party and the Indemnifying
Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (B) there may be one or more legal defenses available to
it which are different from or additional to those available to the Indemnifying
Party. In either of such cases the Indemnifying Party shall not have the right
to assume the defense of such action on behalf of such Indemnified Party. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld. The rights
accorded to any Indemnified Party hereunder shall be in addition to any rights
that such Indemnified Party may have at common law, by separate agreement or
otherwise.
(d) CONTRIBUTION. If the indemnification provided for in
Section 8(a) from the Indemnifying Party is unavailable to an Indemnified Party
in respect of any losses, claims, damages, expenses or other liabilities
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, expenses or other
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, expenses or other liabilities,
as well as any other relevant equitable considerations. The relative faults of
such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, was made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the Indemnifying Party's and
Indemnified Party's relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, expenses or other liabilities
referred to above shall be deemed to include, subject to the limitations set
forth in Sections 8(a), 8(b) and 8(c), any legal or other fees, charges or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable con siderations referred to in the immediately preceding
paragraph. No person guilty of
14
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution pursuant to this Section 8(d).
9. RULE 144; OTHER EXEMPTIONS. The Company covenants that it
shall file any reports required to be filed by it under the Exchange Act and the
rules and regulations adopted by the SEC thereunder, and that it shall take such
further action as each Holder may reasonably request (including providing any
information necessary to comply with Rules 144 and 144A under the Exchange Act),
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Exchange Act within the
limitation of the exemptions provided by (a) Rule 144 or Rule 144A under the
Exchange Act, as such rules may be amended from time to time, or (b) any other
similar rules or regulations hereafter adopted by the SEC. The Company shall,
upon the request of any Holder, deliver to such Holder a written statement as to
whether the Company has complied with such requirements.
10. MISCELLANEOUS.
(a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to the
Registrable Securities, to any and all shares of capital stock of the Company or
any successor or assign of the Company (whether by merger, consolidation, sale
of assets or otherwise) which may be issued in respect of, in exchange for or in
substitution of, the Registrable Securities and shall be appropriately adjusted
for any stock dividends, splits, reverse splits, combinations, recapitalizations
and the like occurring after the date hereof.
(b) NO INCONSISTENT AGREEMENTS; OTHER REGISTRATION RIGHTS. The
Company will not hereafter enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement. Without limiting the generality of the
foregoing, the Company will not hereafter enter into any agreement with respect
to its securities that grants, or modify any existing agreement with respect to
its securities to grant, to any holder of its securities (x) a right to demand
registration of such securities or (y) "piggyback" registration rights with
priority equal to or greater than the rights granted to the Designated Holders
under Section 4(a).
(c) REMEDIES. The Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
15
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or supple
mented, and waivers or consents to departures from the provisions of such
section may not be given unless the Company has obtained the prior written
consent of (i) Parent and (ii) the Holders holding more than 50% of the
Registrable Securities.
(e) NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
(i) if to Parent:
USANi Sub LLC
c/o USA Networks, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
16
(ii) if to USAi:
USA Networks, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(iii) if to the Company:
Styleclick, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(iv) if to any other Holder, to its, his or her address as
it appears on the record books of the Company.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial overnight courier service; five Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, if telecopied.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
Notwithstanding any transfer of such rights, all of the obligations of the
Company hereunder shall survive any such transfer and shall continue to inure to
the benefit of all transferees.
(g) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
17
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law of such State.
(j) JURISDICTION. Each party to this Agreement hereby
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
may be brought in the courts of the State of New York or of the United States of
America for the Southern District 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. Each party hereby irrevocably consents to the service of
process of any of the aforementioned courts in any such suit, action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth in Section 10(e), such service to
become effective 10 days after such mailing.
(k) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Holders shall be
enforceable to the fullest extent permitted by law.
(l) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings in respect of the subject matter contained
herein, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(m) FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
18
[Signature Page for Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
USA NETWORKS, INC.
By /s/ Xxxx Xxxxxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title:Executive Vice President,
Operations and Strategic Planning
USANI SUB LLC
By /s/ Xxxx Xxxxxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
STYLECLICK, INC.
By /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
