EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is
dated as of March 28, 2002, by and among
1. USA NETWORKS, INC, a company incorporated under the laws of the state
of Delaware whose principal executive offices are at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("USA");
2. ▇▇▇▇▇ ▇▇▇▇▇▇▇ whose address is ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇ ▇▇▇;
3. ▇▇▇▇▇ ▇▇▇▇▇▇▇ whose address is ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇;
4. ▇▇▇▇▇ ▇▇▇▇▇ whose address is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
5. ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ whose address is ▇▇▇▇▇▇▇▇▇ ▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇;
6. McJILL CORPORATION a company incorporated under the laws of the British
Virgin Islands whose registered office is at Cutlass Building, Wickhams Cay,
Road Town, Tortola, British Virgin Islands;
7. KUONI REISEN HOLDING AG a company incorporated under the laws of
Switzerland whose registered office is at ▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇;
8. BARCLAYS INDUSTRIAL DEVELOPMENT LIMITED a company incorporated under
the laws of England and Wales whose registered office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
9. BARCLAYS PVLP PARTNER LIMITED a company incorporated under the laws of
England and Wales whose registered office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇;
10. CLINK STREET NOMINEES LIMITED a company incorporated under the laws of
England and Wales whose registered office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇; and
11. PARALLEL VENTURES NOMINEES NO.2 LIMITED a company incorporated under
the laws of England and Wales whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
(each a "TVTS Shareholder", and together the "TVTS Shareholders").
W I T N E S S E T H:
WHEREAS, USA, the TVTS Shareholders and certain other parties
have entered into a Sale and Purchase Agreement, dated as of the date hereof
(including any amendment, restatement, modification or supplement thereto or
thereof, the "Acquisition Agreement"), providing for, among other things, the
acquisition by USA of all the ordinary shares of TV Travel Group Limited, a
limited company organized under the laws of the United Kingdom ("TVTS")
on the terms and subject to the conditions set forth therein (capitalized terms
used in this Agreement and not otherwise defined shall have the meanings
ascribed to such terms in the Acquisition Agreement);
WHEREAS, in, or as a result of, the transaction contemplated
under the Acquisition Agreement ("Transaction"), the TVTS Shareholders will
receive, amongst other things, cash and shares of common stock, par value $0.01
per share, of USA ("USA Common Stock") in exchange for shares of TVTS owned by
the TVTS Shareholders at Completion; and
WHEREAS, USA has agreed, on the terms and subject to the
conditions set forth herein, to provide registration rights with respect to the
shares of USA Common Stock to be issued to the TVTS Shareholders upon
consummation of the Transaction.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements, covenants, representations and warranties contained
herein, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. SHELF REGISTRATION STATEMENT.
1.1 FILING; EFFECTIVE PERIOD. USA shall prepare and file with
the SEC as soon as reasonably practicable a Registration Statement on Form S-3
or Form S-4 (or other appropriate form should Form S-3 or Form S-4 be
unavailable for USA) with respect to the Registrable Securities (as defined
below) received by the TVTS Shareholders in the Transaction and shall use
reasonable best efforts to cause such Registration Statement to become effective
within two business days following the Completion Date and remain effective
until the earlier of (i) the date on which the TVTS Shareholders no longer own
any shares of Registrable Securities, and (ii) the one-year anniversary of the
Completion Date if USA has filed all reports required to be filed under the
Securities Exchange Act of 1934 in the twelve months preceding such date, and
otherwise the two-year anniversary of the Completion Date; PROVIDED, that USA
may suspend the effectiveness of such Registration Statement if and only for so
long as USA determines that such registration would require premature disclosure
of material information relating to a pending corporate development; PROVIDED,
FURTHER, that (i) any period of continuous suspension shall not exceed twenty
(20) business days, and (ii) the Registration Statement shall not be suspended
for an aggregate of greater than sixty (60) business days in any calendar year.
USA's obligation under this Section 1.1 is subject to each TVTS Shareholder's
timely cooperation in connection with the preparation and filing of the
Registration Statement. Subject to Section 10.1 of the Acquisition Agreement,
nothing herein shall be interpreted as affecting the right of any TVTS
Shareholder to sell shares of Registrable Securities in open market transactions
as permitted by Rule 145. Based on current circumstances, USA hereby agrees that
it will not take a position that any TVTS Shareholder is an "affiliate" of USA
for purposes of Rule 145.
1.2 REGISTRABLE SECURITIES. For purposes of this Agreement
"Registrable Securities" shall mean only those shares of USA Common Stock
received by the TVTS Shareholders in the Transaction, including, when released,
any shares of the TVTS Shareholders that are subject to the Escrow Agreement (as
may be amended, restated, modified or supplemented); PROVIDED that, for purposes
of clarity, any shares of USA Common Stock issued to any TVTS
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Shareholder upon the exercise of any option to acquire shares of USA Common
Stock (whether such option was granted in connection with the Transaction or
otherwise) shall not constitute Registrable Securities.
1.3 REGISTRATION STATEMENT EXPENSES. All fees, disbursements
and out-of-pocket expenses and costs incurred by USA in connection with the
preparation of the Registration Statement under this Section 1 and in complying
with applicable securities and blue sky laws shall be borne by USA, including,
without limitation, printing costs, listing fees and SEC filing fees applicable
to the Registrable Securities being registered and all attorneys' fees of USA.
The TVTS Shareholders shall bear all other costs and expenses applicable to the
Registrable Securities being registered, including any brokerage discounts, fees
or commissions relating thereto, and the fees and expenses of their respective
counsel.
1.4 SHAREHOLDER REVIEW OF REGISTRATION STATEMENT AND COMMENT
LETTERS. The Sellers' Representative and its counsel ("Counsel") shall have a
reasonable period, not to exceed ten (10) business days, to review the proposed
Registration Statement or any amendment thereto, prior to filing with the SEC,
and USA shall provide Counsel with copies of any comment letters received from
the SEC with respect thereto within two (2) business days of receipt thereof.
1.5 QUALIFICATIONS. USA shall qualify any of the Registrable
Securities for sale in such states as Counsel reasonably designates and shall
furnish indemnification in the manner provided in Section 4 hereof. However, USA
shall not be required to qualify in any state which will require an escrow or
other restriction relating to USA and/or the sellers, or which will require USA
to qualify to do business in such state or require USA to file therein any
general consent to service of process or otherwise subject USA or its
subsidiaries to any adverse business or financial consequences, including
without limitation being subject to state income or other state taxes.
1.6 MANNER OF SALE. The TVTS Shareholders shall not be
permitted to use the Registration Statement for purposes of an underwritten
offering without the consent of USA.
2. COOPERATION WITH USA; REPRESENTATION. The TVTS Shareholders shall
cooperate with USA in all respects in connection with this Section 2, including
timely supplying all information reasonably requested by USA (which shall
include all information regarding the TVTS Shareholders and the proposed manner
of sale of the Registrable Securities required to be disclosed in the
Registration Statement) and executing and returning all documents reasonably
requested in connection with the registration and sale of the Registrable
Securities. Each TVTS Shareholder's obligations under this Section 2 shall
include compliance by such TVTS Shareholder with respect to information to be
provided by TVTS Shareholders in connection with the Registration Statement, the
prospectus (the "Prospectus") related thereto, or any supplement or amendment
thereto, with the provisions of Sections 3(a), (e) and (f).
Each TVTS Shareholder represents and warrants to USA that any
sale by such TVTS Shareholder of Registrable Securities, whether pursuant to a
Registration Statement or otherwise, shall be made in compliance with federal
and applicable state and foreign securities laws.
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3. REGISTRATION PROCEDURES. If and whenever USA is required by any of the
provisions of this Agreement to effect the registration of any of the
Registrable Securities under the Securities Act of 1933, as amended (the
"Securities Act"), USA shall (except as otherwise provided in this Agreement),
as expeditiously as possible, subject to each TVTS Shareholder's assistance and
cooperation as reasonably required:
(a) (i) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the Prospectus as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration
statement whenever the TVTS Shareholders shall desire to sell or
otherwise dispose of the Registrable Securities (including prospectus
supplements with respect to the sales of securities from time to time
in connection with a registration statement pursuant to Rule 415
promulgated under the Securities Act) and (ii) take all lawful action
such that each of (A) the Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
and (B) the Prospectus, and any amendment or supplement thereto, does
not at any time during the period in which the Registration Statement
is effective include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, PROVIDED, HOWEVER, that the obligations
of USA set forth in this subparagraph shall not apply to the extent
that such statement or omission relates to information to be provided
by a TVTS Shareholder, so long as USA has included such information as
provided by such TVTS Shareholder (or failed to include it due to a
TVTS Shareholder's failure to provide such information);
(b) (i) prior to the filing with the SEC of any Registration
Statement (including any amendments thereto) and the distribution or
delivery of the Prospectus (including any supplements thereto), provide
draft copies thereof to Counsel and (ii) furnish to Counsel such
numbers of copies of the Prospectus (including a preliminary prospectus
or any amendment or supplement to the Prospectus), as applicable, in
conformity with the requirements of the Securities Act, and such other
documents, as Counsel may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities;
(c) comply with the blue sky laws with respect to the
Registrable Securities, and do any and all other acts and things which
may be reasonably necessary or advisable to enable the TVTS
Shareholders to consummate the public sale or other disposition in such
jurisdiction of the Registrable Securities, except that USA shall not
for any such purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or to
file therein any general consent to service of process;
(d) list such Registrable Securities on each securities
exchange or quotation system on which similar securities issued by USA
are then listed, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or quotation
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system or if the listing requirements are waived, or list such
Registrable Securities on a mutually agreeable securities exchange or
quotation system if the listing of such Registrable Securities is then
permitted under the rules of such exchange or quotation system or if
the listing requirements are waived. If listing on an exchange cannot
be immediately effected, then it shall be accomplished as soon as
possible;
(e) (i) notify Counsel at any time when the Prospectus is
required to be delivered under the Securities Act, of the happening of
any event of which it has knowledge as a result of which the
Prospectus, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and (ii) prepare and file
a curative amendment or curative supplement under Section 3(a) as
quickly as commercially possible;
(f) as promptly as practicable after becoming aware of such
event, notify Counsel of the issuance by the SEC or any state authority
of any stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time and take all
lawful action to effect the withdrawal, rescission or removal of such
stop order or other suspension; and
(g) maintain a transfer agent for its securities.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 INDEMNIFICATION BY USA. USA agrees to indemnify and hold
harmless the TVTS Shareholders and each person, if any, who controls any TVTS
Shareholder within the meaning of the Securities Act (collectively with the TVTS
Shareholders, the "Distributing Shareholder") against any losses, claims,
damages or liabilities, joint or several (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), to which the Distributing
Shareholder may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, or any related
preliminary prospectus, the Prospectus or amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading; PROVIDED, HOWEVER, that USA will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, preliminary prospectus, the
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, information furnished to USA by the Distributing Shareholder
specifically for use in the preparation thereof. This Section 4.1 shall not
inure to the benefit of any Distributing Shareholder with respect to any person
asserting such loss, claim, damage or liability who purchased the Registrable
Securities which are the subject thereof if the Distributing Shareholder failed
to send or give a copy of the Prospectus, or any amendment or supplement
thereto, to such person at or prior to the written confirmation to such person
of the sale of such Registrable Securities, where the Distributing Shareholder
was obli-
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gated to do so under the Securities Act or the rules and regulations promulgated
thereunder. This indemnity agreement, together with the contribution agreement
contained herein, shall be the sole remedy of a Distributing Shareholder with
respect to the matters described herein.
4.2 INDEMNIFICATION BY A DISTRIBUTING SHAREHOLDER. Each
Distributing Shareholder agrees that it will, severally and not jointly
(PROVIDED that such agreement shall be joint and several with respect to
affiliates of a particular Distributing Shareholder), indemnify and hold
harmless USA, and each officer, director of USA or person, if any, who controls
USA within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees) to which USA or any such
officer, director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, or any related preliminary prospectus, the Prospectus or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of circumstances under
which they were made not misleading, but in each case only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, preliminary prospectus, the
Prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, information furnished to USA by such Distributing Shareholder
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which the Distributing Shareholder may otherwise
have.
4.3 CONTRIBUTION. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 4.1 or 4.2 hereof
but is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that the express provisions of
Section 4.1 and 4.2 hereof provide for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any
indemnified party, then USA and the applicable Distributing Shareholder shall
contribute to the payment or satisfaction of the aggregate losses, claims,
damages or liabilities to which they may be subject (which shall, for all
purposes of this Agreement, include, but not be limited to, all reasonable costs
of defense and investigation and all reasonable attorneys' fees), in either such
case (after contribution from others) on the basis of relative fault as well as
any other relevant equitable considerations, which shall include both the
relative fault of the parties and the relative benefits to the parties. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by USA
on the one hand or the applicable Distributing Shareholder on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. USA and the
Distributing Shareholder agree that it would not be just and equitable if
contribution pursuant to this Section 4.3 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 4.3. The amount paid or
payable by an indemnified party as a result of the losses,
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claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 4.3 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
4.4 NOTIFICATION. Promptly after receipt by an indemnified
party under this Section 4 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 4, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party except to the extent of actual prejudice demonstrated by the
indemnifying party. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified,
assume the defense thereof, subject to the provisions herein stated, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 4 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless the indemnifying
party shall not pursue the action to its final conclusion. The indemnified party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party (nor shall such party
control the defense thereof) if the indemnifying party has assumed the defense
of the action with counsel reasonably satisfactory to the indemnified party;
PROVIDED, HOWEVER, that the fees and expenses of counsel to the indemnified
party shall be at the expense of the indemnifying party if (i) the employment of
such counsel has been specifically authorized in writing by the indemnifying
party, or (ii) the named parties to any such action (including any impleaded
parties) include both the Distributing Shareholder and USA and the indemnified
party shall have been advised by such counsel in writing that there may be one
or more legal defenses available to the indemnifying party in conflict with any
legal defenses which may be available to the indemnified party (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party, it being understood, however, that
the indemnifying party shall, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable only for the
reasonable fees and expenses of one separate firm of attorneys for the
indemnified party, which firm shall be designated in writing by the indemnified
party and be approved by the indemnifying party). No settlement of any action
against an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld,
PROVIDED, FURTHER, that a settlement which does not include an admission of
liability by the indemnified party nor the payment of any monetary or other
damages by such party shall not require such consent.
4.5 INDEMNIFICATION EXPENSES. All fees and expenses of the
indemnified party (including reasonable costs of defense and investigation in a
manner not inconsistent with this Section and all reasonable attorneys' fees and
expenses) shall be promptly paid to the indemni-
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fied party, as incurred, within ten (10) business days of written notice thereof
(accompanied by customary documentation detailing such expenses) to the
indemnifying party; PROVIDED, HOWEVER, that the indemnifying party may require
such indemnified party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such indemnified party is
not entitled to indemnification hereunder.
5. TERMINATION.
5.1 TERMINATION OF THIS AGREEMENT. This Agreement shall
terminate automatically (i) on the termination of the Acquisition Agreement, in
accordance with its terms; or (ii) in the event that the TVTS Shareholders do
not receive any Registrable Securities in connection with the Transaction.
5.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to Section 5.1, this Agreement shall become void and of no
effect with no liability on the part of any party hereto; PROVIDED, HOWEVER, no
such termination shall relieve any party hereto from any liability for any
breach of this Agreement occurring prior to such termination.
6. REPRESENTATIONS AND WARRANTIES OF TVTS SHAREHOLDERS. Each TVTS
Shareholder hereby represents and warrants to USA, severally and not jointly
(PROVIDED that representations and warranties shall be made jointly and
severally with respect to affiliates of a particular TVTS Shareholder) as
follows:
6.1 DUE ORGANIZATION. For those TVTS Shareholders that are
corporations, limited liability companies, partnerships or other business
entities, each such TVTS Shareholder is duly organized or incorporated, is
validly existing and is in good standing under the laws of its jurisdiction of
formation.
6.2 POWER; DUE AUTHORIZATION; BINDING AGREEMENT. Each TVTS
Shareholder has full legal capacity, power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by each TVTS Shareholder and constitutes a valid and
binding agreement of such TVTS Shareholder, enforceable against such TVTS
Shareholder in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting or
relating to the enforcement of creditors rights generally and to general
principles of equity.
6.3 NO CONFLICTS. The execution and delivery of this Agreement
by each TVTS Shareholder does not, and the performance of the terms of this
Agreement by each TVTS Shareholder will not, (a) require such TVTS Shareholder
or any of its affiliates to obtain the consent or approval of, or make any
filing with or notification to, any governmental or regulatory authority,
domestic or foreign, (b) require the consent or approval of any other person
pursuant to any material agreement, obligation or instrument binding on such
TVTS Shareholder or its properties and assets, (c) conflict with or violate any
organizational document or law, rule, regulation, order, judgment or decree
applicable to such TVTS Shareholder or pursuant to which any of its or its
affiliates' respective properties or assets are bound or (d) violate any other
agreement to which such TVTS Shareholder or any of its affiliates is a party
including, without limitation,
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any voting agreement, stockholders agreement, irrevocable proxy or voting trust,
except for any consent, approval, filing or notification which has been obtained
as of the date hereof or the failure of which to obtain, make or give would not,
or any conflict or violation which would not, prevent, delay or materially
adversely affect the consummation of the transactions contemplated by this
Agreement or the Acquisition Agreement.
7. REPRESENTATIONS AND WARRANTIES OF USA. USA hereby represents and
warrants to the TVTS Shareholders as follows: USA is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware. USA has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation by USA of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
USA, and no other proceedings on the part of USA are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by USA and constitutes a valid
and binding agreement of USA, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors rights generally and to general principles of equity.
8. MISCELLANEOUS.
8.1 FURTHER ASSURANCES. From time to time, at the request of
USA or such TVTS Shareholder and without further consideration, such TVTS
Shareholder or USA, respectively, shall execute and deliver such additional
documents and take all such further action as may be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement.
8.2 NON-SURVIVAL. The representations and warranties made
herein shall not survive the termination of this Agreement.
8.3 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; NO
ASSIGNMENT. This Agreement, together with the Acquisition Agreement, constitutes
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. Except as set
forth in the preceding sentence, nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement. This
Agreement shall not be assigned or transferred, whether by merger,
consolidation, asset disposition, operation of law or otherwise, and shall be
binding upon and inure solely to the benefit of each party hereto.
8.4 AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered in
the manner set out in Clause 27 of the
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Acquisition Agreement. Further, all such documents to be delivered to
the Purchaser shall be copied to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8.5 GOVERNING LAW. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
(b) Each party hereto irrevocably submits to the jurisdiction
of any Delaware state court or any federal court sitting in the State
of Delaware in any action arising out of or relating to this Agreement,
and hereby irrevocably agrees that all claims in respect of such action
may be heard and determined in such Delaware state or federal court.
Each party hereto hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The parties hereto further
agree, to the extent permitted by law, that final and unappealable
judgment against any of them in any action or proceeding contemplated
above shall be conclusive and may be enforced in any other jurisdiction
within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and
amount of such judgment.
(c) To the extent that any party hereto has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each party hereto hereby irrevocably
waives such immunity in respect of its obligations with respect to this
Agreement.
(d) Each party hereto waives, to the fullest extent permitted
by applicable laws, any right it may have to a trial by jury in respect
of any action, suit or proceeding arising out of or relating to this
Agreement. Each party hereto certifies that it has been induced to
enter into this Agreement by, among other things, the mutual waivers
and certifications set forth above in this Section.
8.6 REMEDIES. Each TVTS Shareholder and USA recognize and
acknowledge that a breach by it of any covenants or agreements contained in this
Agreement will cause the other party to sustain irreparable injury and damages,
for which money damages would not provide an adequate remedy, and therefore each
TVTS Shareholder and USA agrees that in the event of any such breach by another
party hereto, such TVTS Shareholder or USA, as the case may be, shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief.
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8.7 COUNTERPARTS. This Agreement may be executed by facsimile
and in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same Agreement.
8.8 DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
8.9 SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SIGNED by ▇▇▇▇▇▇ ▇▇▇▇ ) /s/ ▇▇▇▇▇▇ ▇▇▇▇
for and on behalf of )
USA NETWORKS, INC. )
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇ )
Witness signature: ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Address: USA Networks, Inc.
Occupation: Deputy General Counsel
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: ▇▇▇ ▇▇▇▇▇▇▇▇▇ )
Witness signature: ▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Occupation: Trainee Solicitor
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇ ) /s/ ▇▇▇▇▇ ▇▇▇▇▇
in the presence of: ▇▇▇ ▇▇▇▇▇▇▇▇▇ )
Witness signature: ▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Occupation: Trainee Solicitor
SIGNED by ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇ ▇▇▇▇▇
by ▇▇▇▇▇ ▇▇▇▇▇ his attorney )
in the presence of: ▇▇▇ ▇▇▇▇▇▇▇▇▇ )
12
Witness signature: ▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Occupation: Trainee Solicitor
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇ as attorney ) /s/ ▇▇▇▇▇ ▇▇▇▇▇
for and on behalf of )
MCJILL CORPORATION )
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
for and on behalf of )
KUONI REISEN HOLDING AG )
SIGNED by ▇▇▇▇▇ R G G ▇▇▇▇▇ ) /s/ ▇▇▇▇▇ R G G ▇▇▇▇▇
for and on behalf of )
BARCLAYS INDUSTRIAL )
DEVELOPMENT LIMITED )
SIGNED by ▇▇▇▇▇ R G G ▇▇▇▇▇ ) /s/ ▇▇▇▇▇ R G G ▇▇▇▇▇
for and on behalf of )
BARCLAYS PVLP PARTNER LIMITED )
SIGNED by ▇▇▇▇▇ R G G ▇▇▇▇▇ ) /s/ ▇▇▇▇▇ R G G ▇▇▇▇▇
for and on behalf of )
CLINK STREET NOMINEES )
SIGNED by ▇▇▇▇▇ R G G ▇▇▇▇▇ ) /s/ ▇▇▇▇▇ R G G ▇▇▇▇▇
for and on behalf of )
PARALLEL VENTURES )
NOMINEES NO. 2 LIMITED )
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