AMENDMENT TO
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
AMENDMENT TO AMENDED AND RESTATED ASSET PURCHASE AGREEMENT,
dated as of April 9, 2003 (this "Amendment"), by and among XXXXXX.XXX (the
"Company"), USA INTERACTIVE ("Parent"), TMF LIQUIDATING TRUST (the "Trust") the
successor to TMF INC. XXXXXX XXXXXX ("Xxxxxx"), and XXXXX XXXXXX ("Xxxxxx") (the
Trust, Xxxxxx and Xxxxxx are collectively referred to as the "Shareholders").
WHEREAS, the parties hereto (or their predecessors) are
parties to an Amended and Restated Asset Purchase Agreement, dated as of
February 2, 2000 (as amended from time to time, the "Agreement");
WHEREAS, simultaneously with the execution of this Amendment,
the Company, Parent and Equinox Merger Corp. ("Sub") have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which Sub will merge with and into the Company with the
Company continuing as the surviving corporation, upon the terms and subject to
the conditions set forth in the Merger Agreement;
WHEREAS, as a condition and inducement to Parent's willingness
to enter into the Merger Agreement, the parties hereto desire to amend the
Agreement to provide that the transfer restrictions on the shares of Company
Common Stock (as defined in the Merger Agreement) beneficially owned by the
Shareholders will continue with respect to shares of Parent Common Stock (as
defined in the Merger Agreement) received pursuant to the Merger Agreement in
respect of such shares of Company Common Stock; and
WHEREAS, 7,059,960 shares of Company Common Stock beneficially
owned by the Shareholders and held of record by the Trust (the "Restricted
Shares") are currently subject to restrictions pursuant to Section 7.15 of the
Agreement;
NOW THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth in
this Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. The parties hereto agree that: (i) the restrictions in Section 7.15.2
of the Agreement relating to the Restricted Shares shall, from and
after the Effective Time (as defined in the Merger Agreement), apply to
the shares of Parent Common Stock received pursuant to the Merger
Agreement in respect of the Restricted Shares, and (ii) the rights in
Section 7.15.3 of the Agreement that are applicable to shares of
Company Common Stock beneficially owned by the Shareholders and their
Permitted Transferees (as defined in the Agreement) shall, from and
after the Effective Time, apply to the shares of Parent Common Stock
received pursuant to the Merger Agreement by the Shareholders and their
Permitted Transferees in respect of their Company Common Stock . From
and after the Effective Time, the term "Buyer" used in Sections 7.15.2
and 7.15.3 of the Agreement shall mean Parent.
2. Each party hereto represents that (a) it has the full legal right and
power and all authority and approval required to enter into, execute
and deliver this Amendment and to perform fully its obligations
hereunder; (b) this Amendment has been duly executed and delivered and
constitutes the legally valid and binding obligation of such party
enforceable against such party in accordance with its terms; and (c) no
approval or consent of any foreign, federal, state, county, local or
other governmental or regulatory body, and no approval or consent of
any other person is required in connection with the execution and
delivery by such party of this Amendment and the consummation and
performance by such party of the transactions contemplated hereby. Each
of the Shareholders further represents that they collectively
beneficially own the Restricted Shares and that no other person has
beneficial ownership of, or other rights with respect to, any of the
Restricted Shares.
3. This Amendment 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.
4. Subject to termination of this Amendment pursuant to Section 5, from
and after the date hereof, references to the Agreement (whether
contained in the Agreement and otherwise) shall mean the Agreement as
amended by this Amendment. Except as provided in this Amendment, the
Agreement shall remain in full force and effect pursuant to its terms.
5. This Amendment shall terminate automatically and without any further
action required by any of the parties hereto immediately upon
termination of the Merger Agreement in accordance with its terms.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be signed by their respective officers thereunto duly authorized, as of the date
first written above.
USA INTERACTIVE
By: /s/ Xxxxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxx, Executive
Vice President,
General Counsel and Secretary
XXXXXX.XXX
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Chief Executive Officer
[SIGNATURE PAGE TO AMENDMENT TO
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT]
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TMF LIQUIDATING TRUST
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Co-Trustee
By: /s/ Xxxxxx Diner
----------------------------------
Xxxxxx Xxxxxx, Co-Trustee
/s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Diner
[SIGNATURE PAGE TO AMENDMENT TO
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT]
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