EXHIBIT 4.2
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. Each of the entities named on Schedule I hereto (each a "Shareholder" and
collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution hereof, the Shareholders
have agreed to acquire up to 19,954,028 shares of common stock of USA, par value
$0.01 per share ("Common Stock"), in a private transaction (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 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 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.
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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 Shareholder shall not be permitted to use the
Registration Statement for purposes of an underwritten offering without the
consent of USA.
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
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
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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 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 Shareholder 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 the "Shareholders" 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;
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(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 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 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
Shareholder and each person, if any, who controls the 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
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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.
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.
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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 Shareholder 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 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 Shareholder 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
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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, 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.
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5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The 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 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 Shareholder 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
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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 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 the
Shareholder and without further consideration, the Shareholder 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
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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 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
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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. The Shareholder 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 would not provide an adequate remedy, and therefore the Shareholder and
USA agrees that in the event of any such breach by another party hereto, the
Shareholder 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
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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:
Fax:
NAME OF SHAREHOLDER: ADDRESS FOR NOTICES (Please Print):
------------------------------- ---------------------------------------------
---------------------------------------------
SIGNATURE: ---------------------------------------------
Attention:
-----------------------------------
Telecopy:
------------------------------------
By: E-mail (Section 1.1):
----------------------------
Name:
Title:
Exact Name to appear on Stock Certificate:
-------------------------------------
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?
/X/ 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.
SCHEDULE I
NAME OF SHAREHOLDER
