SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
- --------------------------------------------------------------------------------
SCHEDULE 13D/A*
Under the Securities Exchange Act of 1934
USA Interactive (formerly USA Networks, Inc.)
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
Charles Y. Tanabe, Esq. Pamela S. Seymon, Esq. George E. Bushnell III, Esq.
Senior Vice President and General Wachtell, Lipton, Rosen & Katz Vivendi Universal
Counsel 51 West 52nd Street 375 Park Avenue
Liberty Media Corporation New York, New York 10019 New York, New York 10152
12300 Liberty Boulevard (212) 403-1000 (212) 572-7000
Englewood, CO 80112
(720) 875-5400
(Name, Address and Telephone Number of Persons Authorized
to receive Notices and Communications)
February 18, 2003
(Date of Event which Requires Filing of this Statement)
- --------------------------------------------------------------------------------
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [__]
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
- ---------------------
* Note: This statement constitutes Amendment No. 12 of the Report on Schedule
13D of the reporting group consisting of Liberty Media Corporation, Barry
Diller, Vivendi Universal Canada Inc. (formerly The Seagram Company Ltd.),
Vivendi Universal, S.A., Universal Studios, Inc. and the BDTV Entities. This
statement also constitutes Amendment No. 7 of a Report on Schedule 13D of Barry
Diller, Amendment No. 12 of a Report on Schedule 13D of Vivendi Universal Canada
Inc. (formerly The Seagram Company Ltd.) and Universal Studios, Inc., Amendment
No. 6 of a Report on Schedule 13D of Vivendi Universal, S.A., Amendment No. 18
of a Report on Schedule 13D of BDTV II INC., Amendment No. 13 of a Report on
Schedule 13D of BDTV III INC. and Amendment No. 12 of a Report on Schedule 13D
of BDTV IV INC.
1 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Liberty Media Corporation
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 228,183,004 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
2 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Vivendi Universal Canada Inc. (formerly The Seagram Company Ltd.)
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
Canada
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 89,079,043 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[X].Excludes shares beneficially owned by the executive officers and
directors of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
3 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Vivendi Universal, S.A.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
France
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 89,079,043 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
4 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Universal Studios, Inc.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 89,079,043 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X).
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
5 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Barry Diller
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
United States
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 228,183,004 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
IN
6 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e)[_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 228,183,004 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
7 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV II INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 228,183,004 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
8 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV III INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 228,183,004 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
9 of 23
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV IV INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Item 5
(8) Shared Voting Power 228,183,004 shares
(9) Sole Dispositive Power None; see Item 5
(10) Shared Dispositive Power 228,183,004 shares
(11) Aggregate Amount Beneficially Owned by Each 228,183,004 shares
Reporting Person
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X].
Excludes shares beneficially owned by the executive officers and directors
of Liberty, Vivendi Universal, VU Canada and Universal and shares
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse.
(13) Percent of Class Represented by Amount in Row (11) 39.7%. Assumes
conversion of all shares of Class B Common Stock beneficially owned by the
Reporting Persons into shares of Common Stock, the exercise of options to
purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller and the exercise of warrants to purchase 32,467,735 shares of
Common Stock which are currently exercisable by Vivendi Universal. Because
each share of Class B Common Stock generally is entitled to ten votes per
share and each share of Common Stock is entitled to one vote per share, the
Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 68.4% of the voting power of the
Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
CO
10 of 23
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Statement of
LIBERTY MEDIA CORPORATION,
BARRY DILLER,
UNIVERSAL STUDIOS, INC.,
VIVENDI UNIVERSAL CANADA INC. (FORMERLY THE SEAGRAM COMPANY LTD.),
VIVENDI UNIVERSAL, S.A.,
BDTV INC.,
BDTV II INC.,
BDTV III INC.
and
BDTV IV INC.
Pursuant to Section 13(d) of the Securities Exchange Act of 1934
in respect of
USA INTERACTIVE (formerly USA Networks, Inc.)
This Report on Schedule 13D relates to the common stock, par value $.01 per
share (the "Common Stock"), of USA Interactive, a Delaware corporation (formerly
"USA Networks, Inc.") ("USA" or the "Company"). The Reports on Schedule 13D, as
amended and supplemented, originally filed with the Commission by (i) the
reporting group (the "Reporting Group") consisting of Liberty Media Corporation,
a Delaware corporation ("Liberty"), Mr. Barry Diller, Universal Studios, Inc., a
Delaware corporation ("Universal"), Vivendi Universal Canada Inc. (formerly The
Seagram Company Ltd.), a Canadian corporation ("VU Canada"), Vivendi Universal,
S.A., a societe anonyme organized under the laws of the Republic of France
("Vivendi Universal"), BDTV INC., a Delaware corporation ("BDTV"), BDTV II INC.,
a Delaware corporation ("BDTV II"), BDTV III INC., a Delaware corporation ("BDTV
III"), and BDTV IV INC., a Delaware corporation ("BDTV IV") (each, a "Reporting
Person"), on February 24, 1998 (the "Reporting Group Schedule 13D"), (ii)
Liberty on July 19, 1999 (the "Liberty Schedule 13D"), (iii) Mr. Diller on
August 29, 1995 (the "Barry Diller Schedule 13D"), (iv) Universal and VU Canada
on February 24, 1998 (the "Universal Schedule 13D"), (v) BDTV on August 16, 1996
(the "BDTV Schedule 13D"), (vi) BDTV II on December 24, 1996 (the "BDTV II
Schedule 13D"), (vii) BDTV III on July 28, 1997 (the "BDTV III Schedule 13D"),
(viii) BDTV IV on February 24, 1998 (the "BDTV IV Schedule 13D"), and (ix)
Vivendi Universal on August 2, 2001 (the "Vivendi Schedule 13D") are each hereby
amended and supplemented to include the information set forth herein. This
Report on Schedule 13D constitutes Amendment No. 12 to the Reporting Group
Schedule 13D, Amendment No. 7 to the Liberty Schedule 13D, Amendment No. 22 to
the Barry Diller Schedule 13D, Amendment No. 12 to the Universal Schedule 13D,
Amendment No. 6 to the Vivendi Schedule 13D, Amendment No. 18 to the BDTV
Schedule 13D, Amendment No. 16 to the BDTV II Schedule 13D, Amendment No. 13 to
the BDTV III Schedule 13D and Amendment No. 12 to the BDTV IV Schedule 13D. The
Reporting Group Schedule 13D, the Liberty Schedule 13D, the Barry Diller
Schedule 13D, the Universal Schedule 13D, the Vivendi Schedule 13D, the BDTV
Schedule 13D, the BDTV II Schedule 13D, the BDTV III Schedule 13D and the BDTV
IV Schedule 13D (each, as amended) are collectively referred to as the "Schedule
13D." Capitalized terms not defined herein have the meanings given to such terms
in the prior Reports on Schedule 13D referred to in this paragraph.
Information contained herein with respect to each Reporting Person and its
executive officers, directors and controlling persons is given solely by such
Reporting Person, and no other Reporting Person has responsibility for the
accuracy or completeness of information supplied by such other Reporting Person.
11 of 23
ITEM 2. Identity and Background
Schedules 1, 3 and 5 are incorporated herein by reference and amend and
restate Schedules 1, 3 and 5 to the Schedule 13D, respectively, in their
entirety.
ITEM 3. Source and Amount of Funds or Other Consideration
The information contained in Items 5 and 6 of this Schedule 13D is hereby
incorporated by reference herein.
ITEM 4. Purpose of the Transaction
The information contained in Items 5 and 6 of this Schedule 13D is hereby
incorporated by reference herein.
Depending on market conditions and other factors, and subject to any
restrictions described in Items 5 and 6 or contained in the agreements attached
as Exhibits hereto or as previously filed as exhibits to this Schedule 13D, the
Reporting Persons or their respective subsidiaries may purchase additional
shares of Common Stock in the open market or in private transactions.
Alternatively, depending on market conditions and other factors, and subject to
any restrictions described in Items 5 or 6 or contained in the agreements
attached as Exhibits hereto or previously filed as exhibits to this Schedule
13D, the Reporting Persons or their respective subsidiaries may sell all or some
of their shares of Common Stock.
Except as described in Items 5 and 6 or contained in the agreements
attached as Exhibits hereto or previously filed as exhibits to this Schedule
13D, neither any Reporting Person nor, to the best of their knowledge, any of
their respective directors or officers has plans or proposals that relate to or
would result in any of the actions set forth in clauses (a) through (j) of Item
4.
ITEM 5. Interest in Securities of the Issuer
The information contained in Item 6 of this Schedule 13D is hereby
incorporated by reference herein.
The information contained in Item 5 of this Schedule 13D is hereby amended
and supplemented by adding the following information:
Pursuant to the Equity Warrant Agreement, dated as of May 7, 2002, between
the Company and The Bank of New York, as equity warrant agent (previously filed
as Exhibit 49 to this Schedule 13D), the Company issued to an affiliate of
Vivendi Universal 60,467,735 Equity Warrants (the "Warrants") each to purchase
one share of Common Stock, subject to adjustment, at the following exercise
prices: 24,187,094 Warrants ("Tranche A Warrants") at $27.50 per share,
24,187,094 Warrants ("Tranche B Warrants") at $32.50 per share and 12,093,547
Warrants at $37.50 per share (See the description of the Equity Warrant
Agreement in the Report on Schedule 13D filed by the Reporting Group on December
21, 2001). The Warrants were assigned by such affiliate of Vivendi Universal to
Vivendi Universal on December 30, 2002. Pursuant to the Purchase Agreement,
dated as of February 12, 2003 (the "Purchase Agreement", filed as Exhibit 51 to
this statement), between Deutsche Bank AG ("Deutsche Bank") and Vivendi
Universal, Vivendi Universal sold to Deutsche Bank, on February 18, 2003,
21,000,000 Tranche A Warrants for $8.94 per Tranche A Warrant and 7,000,000
Tranche B Warrants for $7.52 per Tranche B Warrant. In connection with the sale
of Warrants to Deutsche Bank, Vivendi Universal has also granted to Deutsche
Bank an option to purchase all or a portion of an additional 3,187,094 Tranche A
Warrants and 1,000,000 Tranche B Warrants on the same terms. Such option expires
on March 14, 2003.
Vivendi Universal understands that in connection with the purchase of
Warrants by Deutsche Bank, certain affiliates of Deutsche Bank AG issued and
offered (the "Notes Offering") pursuant to Rule 144A under the Securities Act of
1933, as amended, $577,500,000 aggregate principal amount of Tranche A Floating
Rate High Income Premium Exchangeable Notes due 2012 and $227,500,000 aggregate
principal amount of Tranche B
12 of 23
Floating Rate High Income Premium Exchangeable Notes due 2012, in each case,
exchangeable into shares of Common Stock.
In connection with the Notes Offering, Vivendi Universal and Deutsche Bank
Securities Inc. ("DBSI", an affiliate of Deutsche Bank) have entered into a
Lock-Up Agreement, dated as of February 12, 2003 (filed as Exhibit 52 to this
Schedule 13D) pursuant to which Vivendi Universal has agreed 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 issued upon exercise of a stock option or warrant) or
any other security convertible into or exchangeable for shares of Common Stock
or (ii) enter into any hedging transaction relating to the Common Stock, until
the earlier of (A) May 13, 2003 and (B) the termination of the Purchase
Agreement. The foregoing shall not apply to dispositions of (a) securities that
Vivendi Universal acquires in open market transactions that occur after the
completion of the Notes Offering, (b) 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 that are sold pursuant to the Purchase Agreement and (d) any securities
if the transfer is (i) by gift, will or intestacy or (ii) to partners, members,
shareholders or affiliates of Vivendi Universal, or to Vivendi Universal.
As a result of the consummation of the sale of warrants by Vivendi
Universal to Deutsche Bank described above, the members of the Reporting Group
beneficially own 163,553,008 (assuming the exercise of options to purchase
47,120,888 shares of Common Stock which are currently exercisable by Mr. Diller
and the exercise of warrants to purchase 32,467,735 shares of Common Stock which
are currently exercisable by Vivendi Universal) shares of Common Stock and
64,629,996 shares of Class B Common Stock. These shares constitute 32.0% of the
outstanding Common Stock and 100% of the outstanding Class B Common Stock.
Assuming the conversion of all of the Reporting Group's Class B shares into
Common Stock, the Reporting Group would beneficially own 39.7% of the
outstanding Common Stock (calculated in accordance with Rule 13d-3). Because
each share of Class B Common Stock generally is entitled to ten votes per share
and each share of Common Stock is entitled to one vote per share, the Reporting
Persons may be deemed to beneficially own equity securities of the Company
representing approximately 68.4% of the voting power of the Company. The
foregoing beneficial ownership figures exclude shares of Common Stock
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse, as to which
Mr. Diller disclaims beneficial ownership. Mr. Diller continues to hold an
irrevocable proxy granted by each of Universal and Liberty, pursuant to which
Mr. Diller has the right to vote the Company's securities held by Universal,
Liberty and their respective affiliates.
Except as set forth or incorporated by reference herein, no Reporting
Person or, to the best knowledge of each Reporting Person, any executive officer
or director of such Reporting Person has effected any transaction in the Common
Stock during the past 60 days.
ITEM 6. Contracts, Arrangements, Understandings, or Relationships
with Respect to the Securities of the Issuer
The information contained in Item 5 of this Schedule 13D is hereby
incorporated by reference herein.
ITEM 7. Materials to be Filed as Exhibits
The information contained in Item 7 of the Schedule 13D is hereby amended
and supplemented by adding the following information:
The following documents are filed as Exhibits to this Schedule 13D:
Amendment No. 1 dated as of November 25, 2002 to the Amended and Restated
Limited Liability Limited Partnership Agreement of Vivendi Universal
Entertainment LLLP, dated as of May 7, 2002, by and among USI Entertainment
Inc., USANI Holdings XX, Inc., Universal Pictures International Holdings
BV, Universal Pictures International Holdings 2 BV, NYCSpirit Corp. II, USA
Networks, Inc., USANI Sub LLC, New-U Studios Holdings, Inc. and Mr. Diller.
13 of 23
Purchase Agreement, dated as of February 12, 2003, between Deutsche Bank AG
and Vivendi Universal, S.A.
Lock-Up Agreement, dated as of February 12, 2003, between Vivendi
Universal, S.A. and Deutsche Bank Securities Inc.
14 of 23
SIGNATURES
After reasonable inquiry and to the best of his or her knowledge and
belief, each of the undersigned certifies that the information in this statement
is true, complete and correct.
Dated: February 20, 2003
LIBERTY MEDIA CORPORATION
By:
/s/ Charles Y. Tanabe
---------------------
Name: Charles Y. Tanabe
Title: Senior Vice President
BARRY DILLER
/s/ Barry Diller
----------------
UNIVERSAL STUDIOS, INC.
By:
/s/ Karen Randall
-------------------
Name: Karen Randall
Title: Executive Vice President and
General Counsel
VIVENDI UNIVERSAL CANADA INC.
By:
/s/ George E. Bushnell III
--------------------------
Name: George E. Bushnell III
Title: Secretary
VIVENDI UNIVERSAL, S.A.
By:
/s/ George E. Bushnell III
--------------------------
Name: George E. Bushnell III
Title: Vice President
BDTV INC., BDTV II INC.,
BDTV III INC., BDTV IV INC.
By:
/s/ Barry Diller
---------------------
Name: Barry Diller
Title: President
15 of 23
INDEX TO EXHIBITS
1. Written Agreement between TCI and Mr. Diller regarding Joint Filing of
Schedule 13D./*/
2. Definitive Term Sheet regarding Stockholders Agreement, dated as of August
24, 1995, by and between Liberty Media Corporation and Mr. Diller./*/
3. Definitive Term Sheet regarding Equity Compensation Agreement, dated as of
August 24, 1995, by and between the Company and Mr. Diller./*/
4. Press Release issued by the Company and Mr. Diller, dated August 25,
1995./*/
5. Letter Agreement, dated November 13, 1995, by and between Liberty Media
Corporation and Mr. Diller./*/
6. Letter Agreement, dated November 16, 1995, by and between Liberty Media
Corporation and Mr. Diller./*/
7. First Amendment to Stockholders Agreement, dated as of November 27, 1995,
by and between Liberty Media Corporation and Mr. Diller./*/
8. Agreement and Plan of Merger, dated as of November 27, 1995, by and among
Silver Management Company, Liberty Program Investments, Inc., and Liberty
HSN, Inc./*/
9. Exchange Agreement, dated as of November 27, 1995, by and between Silver
Management Company and Silver King Communications, Inc./*/
10. Agreement and Plan of Merger, dated as of November 27, 1995, by and among
Silver King Communications, Inc., Thames Acquisition Corp. and Savoy
Pictures Entertainment, Inc./*/
11. Voting Agreement, dated as of November 27, 1995, by and among Certain
Stockholders of the Company and Savoy Pictures Entertainment, Inc./*/
12. Letter Agreement, dated March 22, 1996, by and between Liberty Media
Corporation and Barry Diller./*/
13. In re Applications of Roy M. Speer and Silver Management Company, Federal
Communications Commission Memorandum and Order, adopted March 6, 1996 and
released March 11, 1996./*/
14. In re Applications of Roy M. Speer and Silver Management Company, Request
for Clarification of Silver Management Company, dated April 10, 1996./*/
15. In re Applications of Roy M. Speer and Silver Management Company, Federal
Communications Commission Memorandum Opinion and Order and Notice of
Apparent Liability, adopted June 6, 1996 and released June 14, 1996./*/
16. Amended and Restated Joint Filing Agreement of TCI, Mr. Diller and BDTV./*/
17. Amended and Restated Certificate of Incorporation of BDTV INC./*/
18. Press Release issued by the Company and Home Shopping Network, Inc., dated
August 26, 1996./*/
19. Agreement and Plan of Exchange and Merger, dated as of August 25, 1996, by
and among the Company, Home Shopping Network, Inc., House Acquisition
Corp., and Liberty HSN, Inc./*/
20. Termination Agreement, dated as of August 25, 1996, among the Company, BDTV
Inc., Liberty Program Investments, Inc., and Liberty HSN, Inc./*/
16 of 23
21. Voting Agreement, dated as of August 25, 1996, by and among Certain
Stockholders of Home Shopping Network, Inc. and the Company./*/
22. Voting Agreement, dated as of August 25, 1996, by and among Barry Diller,
Liberty Media Corporation, Arrow Holdings, LLC, BDTV Inc., and Home
Shopping Network, Inc./*/
23. Letter Agreement, dated as of August 25, 1996, by and between Liberty Media
Corporation and Barry Diller./*/
24. Second Amended and Restated Joint Filing Agreement by and between TCI, Mr.
Diller, BDTV Inc. and BDTV II Inc./*/
25. Stock Exchange Agreement, dated as of December 20, 1996, by and between the
Company and Liberty HSN, Inc./*/
26. Letter Agreement, dated as of February 3, 1997, by and between BDTV INC.
and David Geffen./*/
27. Stock Exchange Agreement, dated as of May 20, 1997, by and between HSN,
Inc. and Mr. Allen./*/
28. Stockholders Agreement, dated as of May 20, 1997, by and among, Mr. Diller,
Mr. Allen and Liberty Media Corporation./*/
29. Letter Agreement, dated as of May 20, 1997, by and between Mr. Diller and
Liberty Media Corporation./*/
30. Third Amended and Restated Joint Filing Agreement by and between TCI, Mr.
Diller, BDTV Inc., BDTV II Inc. and BDTV III Inc./*/
31. Certificate of Incorporation of BDTV III Inc./*/
32. Investment Agreement among Universal Studios, Inc., HSN, Inc., Home
Shopping Network, Inc. and Liberty Media Corporation, dated as of October
19, 1997 as amended and restated as of December 18, 1997./*/
33. Governance Agreement among HSN, Inc., Universal Studios, Inc., Liberty
Media Corporation and Barry Diller, dated as of October 19, 1997./*/
34. Stockholders Agreement among Universal Studios, Inc., Liberty Media
Corporation, Barry Diller, HSN, Inc. and The Seagram Company Ltd. dated as
of October 19, 1997./*/
35. Spinoff Agreement among Liberty Media Corporation, Universal Studios, Inc.
and HSN, Inc. dated as of October 19, 1997./*/
36. Exchange Agreement among HSN, Inc., Universal Studios, Inc. and Liberty
Media Corporation, dated as of October 19, 1997./*/
37. Amended and Restated LLC Operating Agreement of USANi LLC, by and among USA
Networks, Inc., Home Shopping Network, Inc., Universal Studios, Inc.,
Liberty Media Corporation and Barry Diller, dated as of February 12,
1998./*/
38. Letter Agreement between Liberty HSN, Inc. and HSN, Inc., dated as of
October 19, 1997./*/
39. Fourth Amended and Restated Joint Filing Agreement between
Tele-Communications, Inc., Universal Studios, Inc., The Seagram Company
Ltd. and Barry Diller, dated as of February 23, 1998./*/
40. Certificate of Incorporation of BDTV IV INC./*/
17 of 23
41. Fifth Amended and Restated Joint Filing Agreement by and among
Tele-Communications, Inc., Liberty Media Corporation, Barry Diller,
Universal Studios, Inc., The Seagram Company Ltd., BDTV INC., BDTV II INC.,
BDTV III INC. and BDTV IV INC, dated as of July 19, 1999./*/
42. Sixth Amended and Restated Joint Filing Agreement by and among Liberty
Media Corporation, Barry Diller, Universal Studios, Inc., The Seagram
Company Ltd., Vivendi Universal, BDTV INC., BDTV II INC., BDTV III INC. and
BDTV IV INC. dated as of June 22, 2001. /*/
43. Letter Agreement, dated July 15, 2001, by and among USA Networks, Inc.,
Barry Diller, Universal Studios, Inc. and Liberty Media Corporation./*/
44. Amended and Restated Transaction Agreement, dated as of December 16, 2001,
by and among Vivendi Universal, S.A., Universal Studios, Inc., USA
Networks, Inc., USANi LLC, Liberty Media Corporation and Barry Diller./*/
45. Agreement and Plan of Merger and Exchange, dated as of December 16, 2001,
by and among Vivendi Universal, S.A., Universal Studios, Inc., Light France
Acquisition 1, S.A.S., the Merger Subsidiaries listed on the signature page
thereto, Liberty Media Corporation, Liberty Programming Company LLC,
Liberty Programming France, Inc., LMC USA VI, Inc., LMC USA VII, Inc., LMC
USA VIII, Inc., LMC USA X, Inc., Liberty HSN LLC Holdings, Inc., and the
Liberty Holding entities listed on the signature page thereto./*/
46. Amended and Restated Governance Agreement, dated as of December 16, 2001,
by and among USA Networks, Inc., Universal Studios, Inc., Liberty Media
Corporation, Barry Diller, and Vivendi Universal, S.A./*/
47. Amended and Restated Stockholders Agreement, dated as of December 16, 2001,
by and among Universal Studios, Inc., Liberty Media Corporation and Barry
Diller./*/
48. Amended and Restated Limited Liability Limited Partnership Agreement of
Vivendi Universal Entertainment LLLP, dated as of May 7, 2002, by and among
USI Entertainment Inc., USANI Holdings XX, Inc., Universal Pictures
International Holdings BV, Universal Pictures International Holdings 2 BV,
NYCSpirit Corp. II, USA Networks, Inc., USANI Sub LLC, New-U Studios
Holdings, Inc. and Mr. Diller (including the Amendment No. 1 thereto dated
as of November 25, 2002)./**/
49. Equity Warrant Agreement, dated as of May 7, 2002, between USA Networks,
Inc. and The Bank of New York, as equity warrant agent./*/
50. Exchange Agreement by and among the Company, Liberty Media Corporation,
Liberty HSN II, Inc. and Liberty HSN, Inc., dated as of June 27, 2002./*/
51. Purchase Agreement, dated as of February 12, 2003, between Deutsche Bank AG
and Vivendi Universal, S.A.
52. Lock-Up Agreement, dated as of February 12, 2003, between Vivendi
Universal, S.A. and Deutsche Bank Securities Inc.
/*/ Previously filed.
/**/ Exhibit 48 which was previously filed is hereby supplemented by Amendment
No. 1 to the Amended and Restated Limited Liability Limited Partnership
Agreement of Vivendi Universal Entertainment LLLP, dated as of May 7,
2002, by and among USI Entertainment Inc., USANI Holdings XX, Inc.,
Universal Pictures International Holdings BV, Universal Pictures
International Holdings 2 BV, NYCSpirit Corp. II, USA Networks, Inc., USANI
Sub LLC, New-U Studios Holdings, Inc. and Mr. Diller.
18 of 23
Schedule 1 of the Schedule 13D is hereby amended to read in its entirety as
follows:
SCHEDULE 1
DIRECTORS AND EXECUTIVE OFFICERS OF UNIVERSAL AND
VIVENDI UNIVERSAL CANADA INC. (formerly The Seagram Company Ltd.)
1. Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of Universal.
The name of each person who is a director of Universal is marked with an
asterisk. Unless otherwise indicated, the business address of each person listed
below is 100 Universal City Plaza, Universal City, California 91608.
Principal Occupation or
Name and Business Address Employment and Business Address Citizenship
- ------------------------- ------------------------------- -----------
RON MEYER* President and Chief Operating Officer United States
of Universal
KAREN RANDALL* Executive Vice President and General United States
Counsel of Universal
KENNETH L. KAHRS* Executive Vice President, Human Resources United States
of Universal
FREDERICK HUNTSBERRY* Executive Vice President and Chief United States
Financial Officer of Universal
YASUO NAKAMURA* President, Matsushita Media & Entertainment Japan
Business Development Unit
DIANA SCHULZ* Senior Vice President of Universal United States
SUSAN N. FLEISHMAN Senior Vice President, Corporate United States
Communications and Public Affairs
MARK A. WOOSTER Senior Vice President of Universal United States
MAREN CHRISTENSEN Senior Vice President of Universal United States
WILLIAM APOSTOLIDES Vice President of Universal United States
KEVIN CONWAY Vice President of Universal United States
H. STEPHEN GORDON Vice President of Universal United States
DAVID H. MEYERS Vice President and Assistant Controller United States
of Universal
MARC PALOTAY Vice President of Universal United States
TERRY A. REAGAN Vice President and Controller of Universal United States
RICK SMITH Vice President, Global Strategic Sourcing United States
of Universal
RONALD F. REED Treasurer of Universal United States
SHARON S. GARCIA Secretary of Universal United States
19 of 23
2. Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of Vivendi
Universal Canada Inc. (formerly The Seagram Company Ltd., effective February 28,
2002). The name of each person who is a director of Vivendi Universal Canada
Inc. is marked with an asterisk. Unless otherwise indicated, the business
address of each person listed below is 375 Park Avenue, New York, New York
10152.
Principal Occupation or
Name and Business Address Employment and Business Address Citizenship
- ------------------------- ------------------------------- -----------
ALAN BELL* Partner, Blake Cassels & Graydon, LLP Canada
Blake Cassels & Graydon, LLP
Commerce Court West-CIBC Building
199 Bay Street
Toronto, Ontario M5L 1A9
GEORGE E. BUSHNELL III* Vice President, Vivendi Universal United States
Vivendi Universal
800 Third Avenue
New York, NY 10022
JEAN-FRANCOIS DUBOS* Executive Vice President and General France
Vivendi Universal S.A. Counsel, Vivendi Universal
42, avenue de Friedland
75380 Paris
Cedex 08, FRANCE
JACQUES ESPINASSE* Senior Executive Vice President and Chief France
Vivendi Universal S.A. Financial Officer, Vivendi Universal
42, avenue de Friedland
75380 Paris
Cedex 08, FRANCE
CRAIG THORBURN* Partner, Blake Cassels & Graydon, LLP Canada
Blake Cassels & Graydon, LLP
Commerce Court West-CIBC Building
199 Bay Street
Toronto, Ontario M5L 1A9
FREDERIC CREPIN Vice President, Vivendi Universal France
Vivendi Universal S.A.
42, avenue de Friedland
75380 Paris
Cedex 08, FRANCE
DANIEL J. LOSITO Vice President, Vivendi Universal United States
Vivendi Universal
800 Third Avenue
New York, NY 10022
WILLIAM PODURGIEL Director Foreign Taxes, Vivendi Universal United States
Vivendi Universal
800 Third Avenue
New York, NY 10022
PIERRE-HENRY GALAN Assistant Treasurer, Vivendi Universal France
RONALD REED Assistant Treasurer, Vivendi Universal United States
NICOLE LINDA KELSEY Assistant Corporate Counsel, United States
Vivendi Universal
DEBRA FORD Manager, Corporate Transactions, United States
Vivendi Universal Vivendi Universal
800 Third Avenue
New York, NY 10022
GRAHAM HENDERSON Senior Vice President, Business Affairs and Canada
e-Commerce of Universal Music Group
20 of 23
Schedule 3 of the Schedule 13D is hereby amended to read in its entirety as
follows:
SCHEDULE 3
DIRECTORS AND EXECUTIVE OFFICERS OF LIBERTY MEDIA CORPORATION
The name and present principal occupation of each director and executive
officer of Liberty Media Corporation are set forth below. Unless otherwise
noted, the business address for each person listed below is c/o Liberty Media
Corporation, 12300 Liberty Boulevard, Englewood, Colorado 80112. To the
knowledge of Liberty Media Corporation, all executive officers and directors
listed on this Schedule 3 are United States citizens, except for David J.A.
Flowers, who is a Canadian citizen.
Name and Business Address Principal Occupation and Principal Business (if applicable)
(if applicable) -----------------------------------------------------------
- ---------------
JOHN C. MALONE Chairman of the Board and Director of Liberty
ROBERT R. BENNETT President, Chief Executive Officer and Director of Liberty
DONNE F. FISHER Director of Liberty; President of Fisher Capital Partners, Ltd.
9781 Meridian Blvd., #200
Englewood, Colorado 80112
PAUL A. GOULD Director of Liberty; Managing Director of Allen & Company Incorporated
711 5th Avenue, 8th Floor
New York, New York 10022
GARY S. HOWARD Executive Vice President, Chief Operating Officer and Director of Liberty
JEROME H. KERN Director of Liberty; Consultant, Kern Consulting LLC
4600 S. Syracuse St.
Denver, Colorado 80237
KIM MAGNESS Director of Liberty
DAVID E. RAPLEY Director of Liberty
LARRY E. ROMRELL Director of Liberty
DAVID J.A. FLOWERS Senior Vice President and Treasurer of Liberty
ELIZABETH M. MARKOWSKI Senior Vice President of Liberty
ALBERT E. ROSENTHALER Senior Vice President of Liberty
CHRISTOPHER W. SHEAN Senior Vice President and Controller of Liberty
CHARLES Y. TANABE Senior Vice President, General Counsel and Secretary of Liberty
21 of 23
Schedule 5 of the Schedule 13D is hereby amended to read in its entirety as
follows:
SCHEDULE 5
DIRECTORS AND EXECUTIVE OFFICERS OF VIVENDI UNIVERSAL, S.A.
Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of Vivendi
Universal. The name of each person who is a director of Vivendi Universal, S.A.
is marked with an asterisk. Unless otherwise indicated, the business address of
each person listed below is 42, Avenue de Friedland, 75380 Paris Cedex 08,
France.
Principal Occupation or
Name and Business Address Employment and Business Address Citizenship
- ------------------------ ------------------------------- -----------
JEAN-RENE FOURTOU* Chairman and CEO of Vivendi Universal France
CLAUDE BEBEAR* Chairman of the Supervisory Board of AXA France
25, avenue Matignon
75008 Paris, France
GERARD BREMOND* Chairman and CEO of Pierre & Vacances Group France
L'artois Pont de Flandre
11 rue de Cambrai
75947 Paris Cedex 19 France
EDGAR BRONFMAN, JR.* Vice Chairman of the Board United States
of Vivendi Universal
EDGAR M. BRONFMAN* Member of the Board of Directors of Vivendi United States
Universal
BERTRAND COLLOMB* Chairman and CEO of Lafarge France
61 rue des Belles Feuilles
75116 Paris France
FERNANDO FALCO y President of Real Automovil Club de Espana Spain
FERNANDEZ DE CORDOVA* Fortuny 17-5 A
28020 Madrid Spain
PAUL FRIBOURG* Chairman and CEO of ContiGroup Companies United States
277 Park Avenue - 50th fl.
New York, NY 10172
DOMINIQUE HOENN* Chief Operating Officer of BNP Paribas France
3, rue d'Antin
75002 Paris, France
GERARD KLEISTERLEE* Chairman and CEO of Royal Philips The Netherlands
Electronics
P.O. Box 77900
Building HBT 14
1070 Amsterdam, The Netherlands
MARIE-JOSEE KRAVIS* Senior Fellow, Hudson Institute Inc. United States
625 Park Avenue
New York, NY 10021
HENRI LACHMANN* Chairman and CEO of Schneider Electric France
43-45, Bd Franklin Roosevelt
92500 Rueil-Malmaison, France
JEAN-BERNARD LEVY Chief Operating Officer, Vivendi Universal France
JACQUES ESPINASSE Senior Executive Vice President and Chief France
22 of 23
Financial Officer, Vivendi Universal
ANDREW J. KASLOW Senior Executive Vice President, Human United States
Resources, Vivendi Universal
ROBERT DE METZ Senior Executive Vice President, France
Divestitures, Mergers and Acquisitions,
Vivendi Universal.
MICHEL BOURGEOIS Executive Vice President, Corporate France
Communications, Vivendi Universal
HUBERT JOLY Executive Vice President, Monitoring of US France
Assets, Vivendi Universal
RENE PENISSON Adviser Social Relations and Organization, France
Vivendi Universal
JEAN-FRANCOIS DUBOS Executive Vice President and General France
Counsel, Vivendi Universal
23 of 23
EXHIBIT 48
AMENDMENT NO. 1, dated as of November 25, 2002 (this
"Amendment"), to the AMENDED AND RESTATED LIMITED LIABILITY
LIMITED PARTNERSHIP AGREEMENT (the "Partnership Agreement") of
VIVENDI UNIVERSAL ENTERTAINMENT LLLP (the "Partnership") dated as
of May 7, 2002, by and among USI ENTERTAINMENT INC., a Delaware
corporation ("Universal Sub"), as general partner, USANI HOLDINGS
XX, INC., a Delaware corporation, UNIVERSAL PICTURES
INTERNATIONAL HOLDINGS BV, a corporation organized under the laws
of The Netherlands, UNIVERSAL PICTURES INTERNATIONAL HOLDINGS 2
BV, a corporation organized under the laws of The Netherlands,
NYCSPIRIT CORP. II, a Delaware corporation, USA INTERACTIVE
(formerly known as USA Networks, Inc.), a Delaware corporation,
USANi SUB LLC, a Delaware limited liability company, NEW-U
STUDIOS HOLDINGS, INC., a Delaware corporation, and BARRY DILLER,
as limited partners, VIVENDI UNIVERSAL, S.A., a societe anonyme
organized under the laws of France, UNIVERSAL STUDIOS, INC., a
Delaware corporation, and, SUB I - USA Holding LLC, a Delaware
limited liability company, USI - USA Holding LLC, a Delaware
limited liability company, USIE - USA Holding LLC, a Delaware
limited liability company, and V - USA Holding LLC, a Delaware
limited liability company.
A. The Partnership intends to enter into the VUE Term Loan Agreement
(as defined below).
B. As a condition to the VUE Term Loan Agreement, the Partners are
required to amend certain provisions of the Partnership Agreement as set forth
herein.
C. Each capitalized term used and not otherwise defined herein shall
have the meaning assigned to such term in the Partnership Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments.
(a) Section 1.01 of the Partnership Agreement is hereby amended
by inserting the following definition in the appropriate alphabetical
order therein:
""VUE Term Loan Agreement" shall mean the Amended and
Restated Agreement, dated as of November 25, 2002, among the
Partnership, Banc of America Securities LLC and J.P. Morgan
Securities Inc., as lead arrangers and bookrunners, the Banks
party thereto and JPMorgan Chase Bank, as administrative agent."
""VUE Security Agreement" shall mean the Guarantee and
Security Agreement, dated as of November 25, 2002, among the
Partnership, the guarantors party thereto and JPMorgan Chase
Bank, as administrative agent."
2
(b) Section 2.03 of the Partnership Agreement is hereby amended
by inserting prior to the period at the end of such section the words
", other than trade or fictitious names required in connection with
the business of subsidiaries of the Partnership in the ordinary course
of their business."
(c) Article XIII of the Partnership Agreement is hereby amended
by inserting the following section at the end thereof:
"SECTION 13.06. VUE Term Loan Agreement. The Partnership
shall not at any time on or prior to the 91st day following the
date on which all of the Release Conditions (as defined in the
VUE Security Agreement) are satisfied, take any action of the
sort contemplated by Clause 16.6(c) of the VUE Term Loan
Agreement with respect to the Partnership or any of its
Subsidiaries (as defined in the VUE Term Loan Agreement) or the
assets of any of the foregoing without the prior written
agreement of all Partners holding Common Interests at such time."
SECTION 2. Effectiveness. This Amendment shall be effective as of the
date first set forth above.
SECTION 3. Effect of Amendment.
Except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of any of the parties to the Partnership
Agreement, and shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the
Partnership Agreement, all of which are hereby ratified and affirmed in all
respects and shall continue in full force and effect.
SECTION 4. Counterparts.
This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original and all of which, taken together, shall constitute
one and the same instrument. Delivery of any executed counterpart of a signature
page of this Amendment by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
USI ENTERTAINMENT, INC.,
By /s/ Karen Randall
--------------------------------------
Name: Karen Randall
Title: Executive Vice President
USANI HOLDING XX, INC.,
By /s/ Karen Randall
--------------------------------------
Name: Karen Randall
Title: Executive Vice President
UNIVERSAL PICTURES
INTERNATIONAL HOLDINGS BV,
By /s/ Ad Heskes
--------------------------------------
Name: Ad Heskes
Title: Director
By /s/ N. A. Doornberg
--------------------------------------
Name: N. A. Doornberg
Title: Director
UNIVERSAL PICTURES
INTERNATIONAL HOLDINGS 2 BV,
By /s/ Johannes Reinier van den Eijnden
--------------------------------------
Name: Johannes Reinier van den Eijnden
Title: Director
By /s/ Th. Roos
--------------------------------------
Name: Th. Roos
Title: Director
NYCSPIRIT CORP. II,
By /s/ George E. Bushnell III
--------------------------------------
Name: George E. Bushnell III
Title: President
4
USA INTERACTIVE,
By /s/ Dara Khosrowshahi
--------------------------------------
Name: Dara Khosrowshahi
Title: Executive Vice President &
Chief Financial Officer
USANi SUB LLC,
By /s/ Dara Khosrowshahi
--------------------------------------
Name: Dara Khosrowshahi
Title: Executive Vice President &
Chief Financial Officer
NEW-U STUDIOS HOLDINGS, INC.,
By /s/ Dara Khosrowshahi
--------------------------------------
Name: Dara Khosrowshahi
Title: Executive Vice President &
Chief Financial Officer
BARRY DILLER,
/s/ Barry Diller
-----------------------------------------
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 Winchester Street
London EC2N 2DB
United Kingdom
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
2
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 Barry Diller 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
3
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
4
offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York
10017 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.
5
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) Gilbert
Klanjman, internal corporate counsel of Vivendi and (B) Cravath,
Swaine & Moore, 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.
6
(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. Barry Diller's 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. Barry Diller, 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
Rosen & Katz, special counsel to USAI, and Joann Hawkins, 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
7
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 Winchester Street
London EC2N 2DB
United Kingdom
Attention: Martin Fisch
Telephone: 44 20 7545 7379
Facsmile: 44 20 7545 8173
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Daniel Budofsky, Esq.
Telephone: 212 450-4000
Facsimile: 212 450-4800
(b) if to the Seller, to:
Vivendi Universal, S.A.
8
42, avenue de Friedland
75380 Paris cedex 08/France
Attention: Dominique Gibert
Telephone: 33 1 71 71 10 00
Facsimile: 33 1 71 71 10 01
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Faiza Saeed, Esq.
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
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.
10
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/ Dominique Gibert
--------------------------
Name: Dominique Gibert
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/ Christian Thun-Hohenstein
-----------------------------
Name: Christian Thun-Hohenstein
Title: Managing Director
By: /s/ Craig Flynn
---------------------------
Name: Craig Flynn
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 Winchester Street
London EC2N 2DB
United Kingdom
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,
Gilbert Klajnman
42, avenue de Friedland
75380 Paris cedex 08/France
2
Exhibit A-2
Form of Cravath Swaine & Moore Opinion
[CRAVATH SWAINE & MOORE 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. Barry Diller ("Diller"); (d) the Amended and Restated
Stockholders Agreement dated as of December 16, 2001 (the "Stockholders
Agreement"), among Universal, Liberty, Diller and Vivendi; and (e) the Offer
Notices dated December 18, 2002 from Vivendi to Liberty and Diller 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 Gilbert 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 Diller
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
2
Great Winchester Street
London
EC2N 2DB
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 & Moore 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
--------------------------
4
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. Barry Diller.
Amended and Restated Stockholders Agreement dated as of December 16, 2001,
among Universal Studios, Inc., Liberty Media Corporation, Mr. Barry Diller and
Vivendi Universal, S.A., subject to the expiration of the Offer Notices dated
December 18, 2002 from Vivendi to Liberty Media Corporation and Diller relating
to their rights of first offer under Sections 4.5 and 4.3 thereof.
5
Exhibit B
Form of Lock-up Agreement
February __, 2003
Deutsche Bank Securities Inc.
One South Street
Baltimore, Maryland 21202
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
1
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.
2
Vivendi Universal, S.A.:
----------------------------------
Name:
Title:
Number of shares subject to warrants, options
or convertible securities: Certificate numbers:
- --------------------------------------------- --------------------
3
EXHIBIT 52
Lock-up Agreement
February 12, 2003
Deutsche Bank Securities Inc.
One South Street
Baltimore, Maryland 21202
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 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)
2
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.
Vivendi Universal, S.A.:
/s/ Dominique Gibert
--------------------
Name: Dominique Gibert
Title: Deputy Chief Financial Officer
2
- ------------------------------------------------ ---------------------------
Number of shares subject to warrants, options or Certificate numbers:
convertible securities:
3,560,000 shares of Common Stock 25120
3,560,000 shares of Common Stock 25119
3,560,000 shares of Common Stock 25118
3,560,000 shares of Common Stock 25110
25,000,000 shares of Common Stock 25073
600,000 shares of Common Stock 25072
3,341,308 shares of Common Stock 25071
12,760,000 shares of Class B Common Stock 33
670,000 shares of Class B Common Stock 32
12,093,547 Equity Warrants W8
17,187,094 Equity Warrants W6
3,187,094 Equity Warrants W5
- ------------------------------------------------ ---------------------------