EXHIBIT 51
28,000,000
Warrants
(in two tranches)
to purchase Common Stock, par value $0.01 per share of
USA INTERACTIVE
PURCHASE AGREEMENT
February 12, 2003
Deutsche Bank AG London Branch
6th Floor
Winchester House
Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
Subject to the terms and conditions contained herein, Vivendi Universal,
S.A., a societe anonyme organized under the laws of France ("Vivendi" or the
"Seller"), agrees to sell to Deutsche Bank Aktiengesellschaft, acting through
its London Branch ("Deutsche Bank AG London Branch", "you" or the "Purchaser"),
and the Purchaser agrees to purchase from the Seller, 21 million warrants each
representing the right to purchase one share of common stock, par value $0.01
per share (the "Common Stock") of USA Interactive, a Delaware corporation
("USAI"), at an exercise price of $27.50 per share (the "Tranche A Warrants")
and 7 million warrants each representing the right to purchase one share of
Common Stock of USAI at an exercise price of $32.50 per share (the "Tranche B
Warrants"). The Seller also agrees to sell to Deutsche Bank AG London Branch, at
Deutsche Bank AG London Branch's option, up to an additional 3.187094 million
Tranche A Warrants and 1 million Tranche B Warrants (the "Additional Warrants"
and together with the Tranche A Warrants and the Tranche B Warrants, the
"Warrants") as set forth below. The Warrants are subject to the terms of an
Equity Warrant Agreement dated as of May 7, 2002 (the "Warrant Agreement"),
between USAI and The Bank of New York, as Warrant Agent (the "Warrant Agent").
The foregoing sale of the Warrants to the Purchaser (the "Transfer") will
be made without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance on exemptions from the registration requirements
of the Securities Act. You have advised Vivendi that you will not further
distribute
the Warrants or the shares of Common Stock issuable upon exercise thereof (the
"Underlying Common Stock") in any manner that contravenes or causes the Transfer
to contravene the provisions of the Securities Act.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF VIVENDI.
The representations and warranties made in this Section assume the accuracy
of and compliance with the representations, warranties and covenants of the
Purchaser in Sections 2 and 3.
Vivendi represents and warrants, as of the date of this Agreement, to the
Purchaser, as follows:
(a) Vivendi is duly organized and validly existing as a societe
anonyme under the laws of France and, if relevant under such laws, in good
standing;
(b) Vivendi has valid title to, or a valid "security entitlement"
within the meaning of Section 8-501 of the New York Uniform Commercial Code
(the "UCC") in respect of, the Warrants free and clear of all security
interests, claims, liens, equities or other encumbrances;
(c) upon the Purchaser's acquiring possession of the Warrants upon
payment therefor in accordance with this Agreement, the Purchaser (assuming
that the Purchaser has no notice of any "adverse claim", within the meaning
of Section 8-105 of the UCC) will acquire its interest in the Warrants free
and clear of any adverse claim within the meaning of Section 8-102 of the
UCC;
(d) the execution and delivery by Vivendi of, and the performance by
Vivendi of its obligations under, this Agreement will not violate any
provision of applicable law or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Vivendi, or the
organizational documents of Vivendi, or subject to satisfaction of the
condition set forth in Section 6(b)(ii), constitute a breach of or default
under any agreement or other instrument to which Vivendi is a party or by
which Vivendi may be bound; and each consent, approval, authorization
designation, declaration or filing by or with any regulatory,
administrative or other governmental body or agency, if any, necessary in
connection with the execution and delivery of this Agreement or the
performance by Vivendi of its obligations under this Agreement
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has been obtained or made and is in full force and effect, except as may be
required by the federal securities laws or the securities or blue sky laws
of the various states or of any foreign jurisdiction;
(e) the execution and delivery by Vivendi of, and the performance by
Vivendi of its obligations under, this Agreement have been duly and validly
authorized by all necessary corporate action on the part of Vivendi, and
this Agreement has been duly executed and delivered by Vivendi and
constitutes a valid and binding agreement of Vivendi subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and equitable principles of general applicability (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(f) Neither Vivendi nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act, an "Affiliate") that it controls has
directly or through any agent, (i) within the prior six months, made any
offer or sale of the Warrants or of any security of the same or similar
class as the Warrants or the Underlying Common Stock (except for the
assignment of the Warrants from Canal + Benelux BV to Vivendi on December
30, 2002 and the offers made to Xxxxx Xxxxxx and Liberty Media Corporation
in connection with the Transfer and in accordance with their Shareholder
Rights (as defined below)) or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Rule 502(c)
of Regulation D under the Securities Act) in connection with the offering
of the Warrants, or engaged in a public offering of the Warrants within the
meaning of Section 4(2) of the Securities Act; and
(g) Vivendi (excluding, for the avoidance of doubt, its Affiliates) is
not in possession of any material non-public information regarding USAI.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to and agrees with Vivendi as
follows:
(a) the Purchaser is an "accredited investor" as defined in Rule
501(a) under the Securities Act;
(b) neither the Purchaser nor any of its Affiliates or any person
acting on its or their behalf has offered or shall offer or sell the
Warrants or Underlying Common Stock by any form of general solicitation or
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general advertising within the meaning of Rule 502(c) of Regulation D under
the Securities Act;
(c) the Purchaser is not acquiring the Warrants with a view to
offering, reselling or transferring the Warrants or the Underlying Common
Stock in any transaction or manner requiring registration under the
Securities Act or engaging in a public offering thereof or of the
Underlying Common Stock within the meaning of Section 4(2) of the
Securities Act;
(d) the Warrants and the Underlying Common Stock are "restricted
securities" for purposes of Rule 144 under the Securities Act; and
(e) the Transfer of the Warrants (and the Underlying Common Stock)
have not been and will not be registered under the Securities Act or with
the securities regulatory authority of any state or territory within the
jurisdiction of the United States and may not be offered or resold except
in compliance with the registration requirements of the Securities Act or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
3. PURCHASE, SALE AND DELIVERY OF THE WARRANTS.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth,
the Seller agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Seller, the Tranche A Warrants, at a purchase price of
$8.94 per Warrant (the "Tranche A Purchase Price"), and the Tranche B
Warrants, at a purchase price of $7.52 per warrant (the "Tranche B Purchase
Price").
(b) One or more warrant certificates representing the Tranche A
Warrants and the Tranche B Warrants shall be registered by the Warrant
Agent in the name of Deutsche Bank AG London Branch, with any transfer
taxes payable in connection with the transfer of the Tranche A Warrants and
the Tranche B Warrants to Deutsche Bank AG London Branch duly paid, and
delivered to Deutsche Bank AG London Branch on the Closing Date, against
payment therefor by or on behalf of Deutsche Bank AG London Branch to the
account designated by the Seller in an amount equal to the sum of (i) the
product of the Tranche A Purchase Price and the number of Tranche A
Warrants and (ii) the product of the Tranche B Purchase Price and the
number of Tranche B Warrants by wire transfer in immediately available
funds. Delivery of and payment for the Tranche A Warrants and the Tranche B
Warrants shall be made at the
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offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 at 9:30 A.M., New York City time, on the third full business day
following the date of this Agreement, or at such other place, time or date
not later than five business days thereafter as the Purchaser and the
Seller may agree upon. Such time and date of delivery against payment are
herein referred to as the "Closing Date." (As used herein, "business day"
means a day on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and are not permitted by law
or executive order to be closed.)
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Seller hereby grants an option to the Purchaser to purchase the
Additional Warrants at the applicable Purchase Price per warrant set forth
in the first paragraph of this Section 3. The option granted hereby may be
exercised by the Purchaser in whole or in part by giving written notice to
the Seller (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, setting forth
the number of warrants of the same series as the Tranche A Warrants and
warrants of the same series as the Tranche B Warrants as to which Deutsche
Bank AG London Branch is exercising the option and the time and date for
delivery of and payment for such Additional Warrants. The time and date for
delivery of and payment for such Additional Warrants shall be determined by
Deutsche Bank AG London Branch but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein
referred to as the "Option Closing Date"). If the date of exercise of the
option is two or more days before the Closing Date, the notice of exercise
shall set the Closing Date as the Option Closing Date. Deutsche Bank AG
London Branch may cancel such option at any time prior to its expiration by
giving written notice of such cancellation to the Seller.
4. DISTRIBUTION BY THE PURCHASER.
The Purchaser understands and acknowledges that the Transfer of the
Warrants (and the Underlying Common Stock) has not been and will not be
registered under the Securities Act and may not be offered or resold, except in
compliance with the registration requirements of the Securities Act or pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act; accordingly, the Purchaser agrees that it
will not offer or sell the Warrants or the Underlying Common Stock in any manner
that contravenes or causes the Transfer to contravene the rules and regulations
of the Securities Act.
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5. COSTS AND EXPENSES.
The Seller agrees to pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement, including, without limiting
the generality of the foregoing, the following: the fees and disbursements of
counsel for the Seller; the expenses associated with the preparation, issuance
and delivery to the Purchaser of the warrant certificates representing the
Warrants; and any transfer, documentary, sales, use, stamp, registration or
other such taxes and fees incurred in connection with the transactions
contemplated by this Agreement. The Seller agrees to pay for the Purchaser's
expenses and to reimburse the Purchaser for reasonable out-of-pocket expenses,
including reasonable fees and disbursements of counsel, incurred in connection
with or in contemplation of performing its obligations hereunder, not to exceed
$1,500,000 in the aggregate.
6. CONDITIONS.
(a) The obligations of the Purchaser to purchase the Tranche A
Warrants and the Tranche B Warrants on the Closing Date and the Additional
Warrants, if any, on the Option Closing Date are subject to the following
conditions:
(i) The Purchaser shall have received the opinions of (A) Xxxxxxx
Klanjman, internal corporate counsel of Vivendi and (B) Cravath,
Swaine & Xxxxx, United States counsel for Vivendi in substantially the
forms attached hereto respectively as Exhibits A-1 and A-2, each dated
the Closing Date or the Option Closing Date, as the case may be, and
addressed to the Purchaser.
(ii) The Purchaser shall have received a certificate or
certificates of the Chief Financial Officer and Deputy Chief Financial
Officer of Vivendi to the effect that, as of the Closing Date or the
Option Closing Date, as the case may be, each of them severally
represents as follows:
(A) the representations and warranties of Vivendi contained
in Section 1 hereof are true and correct in all material respects
as of the Closing Date or the Option Closing Date, as the case
may be; and
(B) Vivendi has performed in all material respects all
covenants and agreements and satisfied in all material respects
all conditions on its part to be performed or satisfied at or
prior to the Closing Date or Option Closing Date, as the case may
be.
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(iii) The Indemnification Agreement (the "Indemnification
Agreement"), between Deutsche Bank Securities Inc., ("DBSI") and USAI
shall have been executed and delivered by USAI on or prior to the date
hereof.
(iv) Vivendi shall have delivered to you, on or prior to the date
of this Agreement, a lock-up agreement, in substantially the form
attached hereto as Exhibit B.
(v) Each of Mr. Xxxxx Xxxxxx'x and Liberty Media Corporation's
right of first offer (the "Shareholder Rights") under Sections 4.3 and
4.5 of the Amended and Restated Stockholders Agreement dated as of
December 16, 2001, relating to USAI, among Universal Studios, Inc.,
Liberty Media Corporation, Mr. Xxxxx Xxxxxx, and Vivendi, with respect
to the Transfer shall have been waived or declined or shall have
expired as of the Closing Date or Option Closing Date, as applicable.
(vi) DBSI shall have received on the Closing Date and, if
applicable, the Option Closing Date, the opinions of Wachtell Lipton
Xxxxx & Xxxx, special counsel to USAI, and Xxxxx Xxxxxxx, internal
counsel of USAI, each as referred to in Section 2(a) of the
Indemnification Agreement.
(vii) DBSI shall have received on the date the Indemnification
Agreement is executed and the Closing Date the comfort letters
referred to in Section 2(b) and 2(c) of the Indemnification Agreement.
(viii) DBSI shall have received on the Closing Date and, if
applicable, the Option Closing Date, the closing certificates referred
to in Section 2(d) of the Indemnification Agreement.
Notwithstanding the foregoing, the Purchaser agrees to use commercially
reasonable best efforts to cause the satisfaction of the conditions listed in
clauses (vi) through (viii) above.
(b) The obligations of the Seller to sell the Tranche A Warrants and
Tranche B Warrants on the Closing Date and the Additional Warrants, if any,
on the Option Closing Date are subject to the following conditions:
(i) The representations and warranties of the Purchaser contained
in Section 2 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be, and the Purchaser has
performed all covenants and agreements and satisfied
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all conditions on its part to be performed or satisfied at or prior to
the Closing Date or the Option Closing Date, as the case may be.
(ii) The Shareholder Rights with respect to the Transfer shall
have been waived or declined or shall have expired as of the Closing
Date or Option Closing Date, as applicable.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the Purchaser (in the case of any condition set forth in paragraph (a) of
Section 6) or Vivendi (in the case of any condition set forth in paragraph (b)
of Section 6) may terminate its obligations hereunder by notifying the other
party or parties, as the case may be, of such termination in accordance with the
provisions of Section 7 hereof on or prior to the Closing Date or Option Closing
Date, as applicable.
7. NOTICES.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered, telecopied or telegraphed and
confirmed as follows:
(a) if to the Purchaser, to:
Deutsche Bank AG London Branch
6th Floor
Winchester House
Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxx
Telephone: 00 00 0000 0000
Facsmile: 44 20 7545 8173
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Telephone: 000 000-0000
Facsimile: 000 000-0000
(b) if to the Seller, to:
Vivendi Universal, S.A.
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00, xxxxxx xx Xxxxxxxxx
00000 Xxxxx cedex 08/France
Attention: Xxxxxxxxx Xxxxxx
Telephone: 00 0 00 00 00 00
Facsimile: 33 1 71 71 10 01
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8. TERMINATION.
(a) This Agreement may be terminated by you by notice to Vivendi at
any time prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to Additional Warrants) if any of
the following has occurred: (i) since the date of this Agreement, any
material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise)
or prospects of USAI and its subsidiaries taken as a whole that would in
your reasonable judgment make it impracticable or inadvisable to market the
Notes (as defined in the Indemnification Agreement) or to enforce contracts
for the sale of the Notes, (ii) any outbreak or escalation of hostilities
or declaration of war or national emergency or other national or
international calamity or crisis or material adverse change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets
of the United States would, in your reasonable judgment, make it
impracticable or inadvisable to market the Notes or to enforce contracts
for the sale of the Notes, (iii) suspension of trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market or limitation on prices (other than limitations
on hours or numbers of days of trading) for securities on either such
Exchange, (iv) the declaration of a banking moratorium by United States or
New York State authorities, (v) any downgrading, or placement on any watch
list for possible downgrading, in the rating of any of USAI's debt
securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Exchange Act), (vi) the
10
suspension of trading of Common Stock by the Nasdaq National Market, the
Securities and Exchange Commission, or any other governmental authority, or
(vii) the taking of any action by any governmental body or agency in
respect of its monetary or fiscal affairs which in your reasonable opinion
has a material adverse effect on your ability to market the Notes or to
enforce contracts for the sale of the Notes.
(b) This Agreement may be terminated as provided in Section 6 of this
Agreement.
(c) Only Section 7 and, in the event termination is the result of a
failure of one of the conditions in Section 6(a) to be satisfied, Section 5
shall survive any termination of this Agreement.
9. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the Purchaser
and Vivendi and their respective successors and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder.
10. MISCELLANEOUS.
The representations, warranties and covenants in this Agreement shall
remain in full force and effect regardless of (a) any investigation made by or
on behalf of the Purchaser, DBSI or any controlling person thereof, or by or on
behalf of Vivendi, or its directors or officers, and (b) delivery of and payment
for the Warrants under this Agreement.
This Agreement constitutes the entire agreement, and supercedes all prior
agreements and understandings, both written and oral, between the parties;
provided, however, that the Mandate Letter and Memorandum of Understanding,
dated October 21, 2002 (the "Mandate Letter"), between Vivendi and the
Purchaser, other than sections 5 "Lock-up clause" and 8 "Indemnity and
Contribution", shall survive the execution of this Agreement; provided further,
that the parties acknowledge that no payment shall be required from Vivendi and
its affiliates pursuant to the Mandate Letter, in connection with the Transfer.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
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If the foregoing Purchase Agreement is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among Vivendi
and the Purchaser in accordance with its terms.
Very truly yours,
VIVENDI UNIVERSAL, S.A.
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Deputy Chief Financial Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK AG LONDON BRANCH
By: /s/ Xxxxxxxxx Xxxx-Xxxxxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxx-Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Legal Counsel
Exhibit A-1
Form of Vivendi Internal Counsel Opinion
[VU LETTERHEAD]
February [?], 2003
Deutsche Bank AG London Branch
6th Floor
Winchester House
Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
I am French Corporate Counsel for Vivendi Universal, S.A. a societe anonyme
organized under the laws of France ("Vivendi Universal"). This opinion letter is
being furnished in connection with the Purchase Agreement dated as of February
12, 2003 (the "Purchase Agreement"), between Deutsche Bank AG (London) and
Vivendi Universal.
In furnishing this opinion letter, I or lawyers under my supervision have
examined such documents, corporate records, certificates of public officials and
other agreements, instruments or opinions as I have deemed necessary or
advisable for the purpose of rendering the opinions set forth below. In this
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to me as original documents and the conformity to
original documents of all documents submitted to me as copies. In rendering the
opinions expressed below, I have relied as to certain matters upon certificates
and oral and written assurances from public officials. As to factual matters
material to this opinion letter, I have, without independent investigation,
relied upon representations from certain officers of Vivendi Universal and its
affiliates.
I do not purport to be an expert on the laws of any jurisdiction other than
the Republic of France, and I express no opinion herein as to the effect of any
other laws.
Based upon and subject to the foregoing and the additional qualifications
and assumptions set forth below, I am of the opinion that (i) the Purchase
Agreement has been duly authorized, executed and delivered by Vivendi Universal,
(ii) Vivendi Universal has, to my knowledge, good, legal and beneficial
ownership in the Warrants to be sold by Vivendi Universal under the Purchase
Agreement, free and clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind and (iii) the execution and
delivery of this Purchase Agreement and the
1
consummation of the transactions therein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, Vivendi Universal's statuts (i.e. organizational
documents), or, to my knowledge any agreement or instrument to which Vivendi
Universal is a party or by which Vivendi Universal may be bound.
This opinion letter is an expression of my professional judgment on the
legal issues explicitly addressed. The rendering of the opinions herein does not
create any express or implied contract or agreement between you or any other
person entitled to rely thereon and me.
This opinion letter is rendered to you in connection with the transaction
referred to above and may not be relied upon by any person or in any other
context. The opinions contained in this opinion letter are rendered as of the
date hereof and I hereby disclaim any obligation to advise any person entitled
to rely hereon of any change in the matters stated herein.
Very truly yours,
Xxxxxxx Klajnman
00, xxxxxx xx Xxxxxxxxx
00000 Xxxxx cedex 08/France
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Exhibit A-2
Form of Xxxxxxx Xxxxxx & Xxxxx Opinion
[XXXXXXX XXXXXX & XXXXX LETTERHEAD]
February [ ], 2003
Vivendi Universal, S.A.
Sale of [ ] Warrants to Purchase
USA Interactive Common Stock
Ladies and Gentlemen:
We have acted as special New York counsel for Vivendi Universal, S.A., a
societe anonyme organized under the laws of France ("Vivendi"), in connection
with the purchase by Deutsche Bank Aktiengesellschaft, acting through its London
branch (the "Purchaser"), from Vivendi pursuant to the Purchase Agreement dated
February 12, 2003 (the "Warrant Purchase Agreement"), between the Purchaser and
Vivendi, of warrants (the "Warrants"), each representing the right to purchase
one share of Common Stock, par value $0.01 per share (the "Common Stock"), of
USA Interactive, a Delaware corporation ("USA"). Unless otherwise defined
herein, capitalized terms shall have the meanings assigned to such terms in the
Warrant Purchase Agreement.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the
purposes of this opinion, including: (a) the Warrant Purchase Agreement; (b) the
Equity Warrant Agreement dated as of May 7, 2002 (the "Equity Warrant
Agreement"), between USA and The Bank of New York, as warrant agent; (c) the
Amended and Restated Governance Agreement dated as of December 16, 2001, among
USA, Vivendi, Universal Studios, Inc. ("Universal"), Liberty Media Corporation
("Liberty") and Mr. Xxxxx Xxxxxx ("Xxxxxx"); (d) the Amended and Restated
Stockholders Agreement dated as of December 16, 2001 (the "Stockholders
Agreement"), among Universal, Liberty, Xxxxxx and Vivendi; and (e) the Offer
Notices dated December 18, 2002 from Vivendi to Liberty and Xxxxxx pursuant to
Sections 4.3 and 4.5 of the Stockholders Agreement [(the "Offer Notices")].
Based on the foregoing, we are of opinion as follows:
1. No authorization, approval or other action by, and no notice to, consent
of, order of, or filing with, any United States Federal or New York governmental
authority or regulatory body is required to be obtained by Vivendi in connection
with its execution and delivery of the Warrant Purchase Agreement or for the
consummation by Vivendi
1
of each of its obligations under the Warrant Purchase Agreement, except in each
case such as have been obtained or made. In addition, no opinion is expressed in
this paragraph (1) with respect to the Securities Act of 1933, as amended, or
any rules promulgated thereunder, or state securities and blue sky laws.
2. Upon the Purchaser's acquiring possession of warrant certificates
representing the Warrants to be sold by Vivendi, endorsed to or in the name of
the Purchaser or its designee, and paying the purchase price therefor pursuant
to the Warrant Purchase Agreement, the Purchaser (assuming that the Purchaser
has no notice of any "adverse claim", within the meaning of Section 8-105 of the
New York Uniform Commercial Code (the "UCC"), to such Warrants) will acquire its
interest in such Warrants free and clear of any adverse claim within the meaning
of Section 8-102 of the UCC. In giving the opinion in this paragraph (2), we
have relied on the legal opinion of Xxxxxxx Klajnman, French Corporate Counsel
for the Purchaser and, with respect to certain factual matters, we have relied
on a certificate of Vivendi attached hereto as Annex I.
3. To our knowledge, neither the execution and delivery of the Warrant
Purchase Agreement by Vivendi nor the consummation by Vivendi of its obligations
under the Warrant Purchase Agreement will conflict with or constitute a breach
of, or default under, any agreement or instrument to which Vivendi is a party or
bound that is listed in Annex II hereto. In connection with the foregoing, we
point out that certain of the agreements referred to in the foregoing sentence
are or may be governed by laws other than the laws of the State of New York. For
purposes of the opinion expressed in this paragraph (3), however, we have
assumed that all such agreements are governed by and would be interpreted in
accordance with the laws of the State of New York.
[4. The Offer Notices constitute valid notice to Liberty and Xxxxxx
pursuant to the terms of Sections 4.3 and 4.5 of the Stockholders Agreement and
the consummation of the transaction contemplated by the Warrant Purchase
Agreement will not require additional action in order to comply with the terms
of Sections 4.3 and 4.5 of the Stockholders Agreement.]
We are admitted to practice in the State of New York, and we express no
opinion as to any matters governed by any law other than the law of the State of
New York and the Federal law of the United States of America. In particular, we
do not purport to pass on any matter governed by the laws of France.
We are furnishing this opinion to you, as the Purchaser, solely for your
benefit. This opinion may not be relied upon by any other person or for any
other purpose or used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
Deutsche Bank AG London
6th Floor
Winchester House
0
Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
3
Annex I
VIVENDI UNIVERSAL, S.A.
Officers' Certificate
Vivendi Universal, S.A., a societe anonyme organized under the laws of
France (the "Company"), hereby certifies, through its duly appointed officers
named below, that, on the date hereof and before the consummation of the
transactions contemplated by the Purchase Agreement dated as of February 12,
2003 (the "Warrant Purchase Agreement"), between Deutsche Bank AG London Branch
and the Company, it has good, legal and beneficial ownership in the Warrants to
be sold by the Company under the Warrant Purchase Agreement, free and clear of
any security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
The Company understands that Cravath, Swaine & Xxxxx is relying on
this Certificate in giving its opinion, dated of even date herewith, pursuant to
Section 6(a)(i)(B) of the Warrant Purchase Agreement.
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the Warrant Purchase Agreement.
IN WITNESS WHEREOF, Vivendi Universal, S.A., through the undersigned
has executed this Certificate as of this [ ] day of February, 2003.
Vivendi Universal, S.A.,
By
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Annex II
Equity Warrant Agreement dated as of May 7, 2002, between USA Interactive
and The Bank of New York, as warrant agent.
Amended and Restated Governance Agreement dated as of December 16, 2001,
among USA Interactive, Vivendi Universal, S.A., Universal Studios, Inc., Liberty
Media Corporation and Mr. Xxxxx Xxxxxx.
Amended and Restated Stockholders Agreement dated as of December 16, 2001,
among Universal Studios, Inc., Liberty Media Corporation, Mr. Xxxxx Xxxxxx and
Vivendi Universal, S.A., subject to the expiration of the Offer Notices dated
December 18, 2002 from Vivendi to Liberty Media Corporation and Xxxxxx relating
to their rights of first offer under Sections 4.5 and 4.3 thereof.
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Exhibit B
Form of Lock-up Agreement
February __, 2003
Deutsche Bank Securities Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Vivendi Universal, S.A. ("Vivendi"), as the selling securityholder (the
"Selling Securityholder") under the Warrant Purchase Agreement (as defined
below), understands that Deutsche Bank Securities Inc. ("DBSI" or the "Initial
Purchaser") proposes to enter into a Purchase Agreement (the "Exchangeable Notes
Purchase Agreement") with Deutsche Bank AG London Branch which provides for the
offering (the "144A Offering") pursuant to Rule 144A under the Securities Act of
1933, as amended, of $577,500,000 aggregate principal amount of Tranche A
Floating Rate High Income Premium Exchangeable Notes due 2012 exchangeable into
common stock, par value $.01 per share ("Common Stock"), of USA Interactive
("USAI") and $357,500,000 aggregate principal amount of Tranche B Floating Rate
High Income Premium Exchangeable Notes due 2012 exchangeable into Common Stock
(the "Notes").
To induce the Initial Purchaser to continue its efforts in connection with
the 144A Offering, Vivendi agrees that, without the prior written consent of
DBSI, it will not (i) directly or indirectly offer, sell, pledge, contract to
sell, grant any option to purchase or otherwise dispose of any shares of Common
Stock (including, without limitation, shares of Common Stock which may be deemed
to be beneficially owned by Vivendi on the date hereof in accordance with the
rules and regulations of the Securities and Exchange Commission and shares of
Common Stock which may be issued upon exercise of a stock option or warrant) or
any other security convertible into or exchangeable for Common Stock ("Covered
Securities") or (ii) enter into any Hedging Transaction (as defined below)
relating to the Common Stock (each of the foregoing is referred to herein as a
"Disposition"), in each case, for a period from the date hereof until the
earlier of (A) the date that is 90 days after the date hereof and (B) the
termination of the Purchase Agreement dated as of February 12, 2003 (the
"Warrant Purchase Agreement"), between the Selling Securityholder and Deutsche
Bank AG London Branch (the "Lock-Up Period"). The foregoing restriction is
expressly intended to preclude each of the undersigned from engaging in any
Hedging Transaction or other transaction that is designed to or reasonably
expected to lead to or result in a
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Disposition during the Lock-Up Period even if the Covered Securities would be
disposed of by someone other than Vivendi. "Hedging Transaction" means any short
sale (whether or not against the box) or any purchase, sale or grant of any
right (including, without limitation, any put or call option) with respect to
any security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from the Common Stock.
The foregoing shall not apply to Dispositions of (a) Covered Securities
that Vivendi acquires in open market transactions that occur after the
completion of the 144A Offering, (b) Covered Securities as part of a
restructuring, reorganization, merger, acquisition, recapitalization or similar
transaction where such Disposition is not the primary purpose of such
transaction, (c) warrants to purchase Common Stock that are sold pursuant to the
Warrant Purchase Agreement and (d) any Covered Securities if the transfer is (i)
by gift, will or intestacy, (ii) to partners, members, shareholders or
affiliates of Vivendi, or to Vivendi; provided, however, that in the case of a
transfer pursuant to clause (d) above, it shall be a condition to the transfer
that the transferee execute an agreement stating that the transferee is
receiving and holding such securities subject to the provisions of this letter
agreement.
Vivendi agrees that USAI may: (i) with respect to any Covered Securities
for which Vivendi is the record holder, cause the transfer agent for USAI to
note stop transfer instructions with respect to such securities on the transfer
books and records of USAI; and (ii) with respect to any Covered Securities for
which Vivendi is the beneficial holder but not the record holder, cause the
record holder of such securities to cause the transfer agent for USAI to note
stop transfer instructions with respect to such securities on the transfer books
and records of USAI.
Vivendi hereby agrees that to the extent that the terms of this letter
agreement conflict with or are in any way inconsistent with any registration
rights agreement to which Vivendi and USAI may be a party, this letter agreement
supersedes such registration rights agreement.
Vivendi hereby represents and warrants that it has full power and authority
to enter into this letter agreement. Any obligations of the undersigned shall be
binding upon the successors and assigns of the undersigned.
Vivendi understands that the Initial Purchaser is relying upon this letter
agreement in proceeding toward consummation of the 144A Offering.
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Vivendi Universal, S.A.:
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Name:
Title:
Number of shares subject to warrants, options
or convertible securities: Certificate numbers:
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