Exhibit F
DATED 2003
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(1) ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
(2) ATLAS TRUST COMPANY (JERSEY) LIMITED, AS
TRUSTEE OF THE INTERNET INVESTMENTS INC.
EMPLOYEE SHARES TRUST
(3) ▇▇▇▇▇▇ ▇▇▇▇▇▇
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DEED OF CONTRIBUTION
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Relating to the merger of ▇▇▇▇▇.▇▇▇ Inc.
with a wholly-owned subsidiary
of USA Interactive
EVERSHEDS
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Tel ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.....................................................1
2. CONTRIBUTIONS......................................................2
3. PAYMENT OF CONTRIBUTION............................................3
4. NOTICES............................................................4
5. NO ASSIGNMENT......................................................5
6. GENERAL............................................................5
THIS AGREEMENT is made on 2003
BETWEEN
(1) ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(facsimile no.: (U.S.A.) 213-473-2222);
(2) ATLAS TRUST COMPANY (JERSEY) LIMITED, as trustee of the Internet
Investments Inc. Employee Shares Trust of ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, 1
Britannia Place, St. Helier, Jersey, JE4 5PP, Channel Islands
(facsimile no.: ▇▇▇ ▇▇ ▇▇▇▇ 280808) (the "Trustee")
(together the "Major Stockholders"); and
(3) ▇▇▇▇▇▇ ▇▇▇▇▇▇ of Redmire Gap, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇ (facsimile no.: 0207 900 1939) (the "Contributor").
BACKGROUND
(A) Pursuant to Section 10.2 of the Merger Agreement, the Major
Stockholders have agreed to indemnify the Indemnitees with respect to
certain Damages that may be incurred by such Indemnitees.
(B) In order to induce the Major Stockholders to agree to assume such
indemnification obligations, the Contributor has agreed to reimburse
each of the Major Stockholders following the Closing for certain
payments that may be made by them in respect of such indemnification
obligations, as set forth in this Agreement.
(C) Pursuant to Schedule B to the Merger Agreement, ▇▇▇▇▇.▇▇▇, Inc. has
agreed to spend up to $750,000 prior to the consummation of the Merger
to purchase insurance to cover certain liabilities of the Major
Stockholders that may arise in connection with such indemnification
obligations (this insurance is referred to herein as the "Major
Stockholders' Insurance").
OPERATIVE PROVISIONS
1. INTERPRETATION
In this Agreement:
1.1 the following expressions have the following meanings unless
inconsistent with the context:
"BUSINESS DAY" Any day other than a Saturday or a Sunday.
"CLAIM" Any claim, including Pre-Closing Claims and
claims made pursuant to the Escrow Agreement,
brought by any Indemnitee against the Major
Stockholders (or any of them) seeking
indemnification for Damages pursuant to
Section 10.2 of the Merger Agreement.
"CONTRIBUTION" The amount to be paid by the Contributor to
the Major Stockholders in respect of a
Liability pursuant to clause 2.3.
"LIABILITY" Any amount actually paid by the Major
Stockholders pursuant to Section 10.2 of the
Merger Agreement or the Escrow Agent pursuant
to the Escrow Agreement to any Indemnitee
with respect to a Claim.
"MERGER AGREEMENT" The Agreement and Plan of Merger, dated as of
December 19, 2002, among USA Interactive,
Geffen Acquisition Sub Inc., ▇▇▇▇▇.▇▇▇ Inc.
and, for purposes of Section 7.8 and Articles
X and XI thereof, the Major Stockholders, a
copy of which is attached hereto as Exhibit
A.
1.2 references to words and phrases which are defined in the Merger
Agreement will have the same meaning in this Agreement unless the
context otherwise requires;
1.3 references to any statute or statutory provision include, unless the
context otherwise requires, a reference to the statute or statutory
provision as modified or re-enacted and in force immediately prior to
the date of this Agreement and any subordinate legislation made under
the relevant statute or statutory provision in force immediately prior
to the date of this Agreement;
1.4 references to the masculine include the feminine and neuter and vice
versa;
1.5 references to clauses are to clauses of this Agreement; and
1.6 the headings in this Agreement will not affect its interpretation.
2. CONTRIBUTIONS
2.1 For the avoidance of doubt, The Civil Liability (Contribution) ▇▇▇
▇▇▇▇ does not apply to this Agreement.
2.2 For the avoidance of doubt, the Contributor shall not be liable to
make any contribution to any damages paid out by the Major
Stockholders pursuant to and arising out of the Stockholders'
Agreement or any payment by the Trustee pursuant to and arising out of
the Trust Agreement, the form of which is attached as Exhibit E to the
Merger Agreement.
2.3 Subject to the provisions of clauses 2.4, 2.5 and 2.6, and in
accordance with clauses 3.1 and 3.2, following the Closing the
Contributor shall, with respect to each Liability, make a payment to
the Major Stockholders in the aggregate amount equal to the product of
(x) the Liability and (y) 0.0197.
2.4 The maximum amount to be paid by the Contributor pursuant to the terms
of this Agreement shall be equal to one half of the net, after tax
amount of the product of (x) the number of shares of Parent Common
Stock issued to the Contributor pursuant to Sections 2.1 and 2.4 of
the Merger Agreement upon consummation of the Merger (such aggregate
number of shares being the Contributor's "Signing Shares"), multiplied
by (y) the Measurement Price, unless the Contributor has sold any of
his Signing Shares prior to the 96th day after the Closing Date, in
which case the maximum amount to be paid by the Contributor pursuant
to the terms of this Agreement shall be equal to one half of the net,
after tax amount of the sum of (A) the number of Signing Shares held
by the Contributor at the end of the 96th day after the Closing Date,
multiplied by the Measurement Price, plus (B) the sale proceeds to the
Contributor from the Signing Shares sold by the Contributor prior to
the 96th day after the Closing Date. The Contributor agrees to deliver
to the Major Stockholders documentation reasonably satisfactory to the
Major Stockholders to enable the Major Stockholders to determine the
amount of sales proceeds received by the Contributor.
2.5 This Agreement, and the Contributor's liability for a Contribution
under this Agreement, shall terminate on the earlier to occur of (i)
the date on which the aggregate amount of Contributions paid by the
Contributor reaches the maximum amount set forth in clause 2.4 or (ii)
the sixth anniversary of the Closing Date.
2.6 The Contributor shall not be required to make a Contribution in
respect of any Liability unless the Major Stockholders have notified
the Contributor that (i) they have reasonably determined that the
Major Stockholders' Insurance, if any, will not cover any portion of
the Liability or (ii) they submitted a claim for coverage of all or a
portion of the Liability under the Major Stockholders' Insurance. With
respect to any Liability for which the Contributor has paid the
Contribution to the Major Stockholders, in the event the Major
Stockholders or the Escrow Agent are subsequently reimbursed from the
proceeds of the Major Stockholders' Insurance for all or a portion of
such Liability, the Major Stockholders shall promptly refund all or a
portion of such Contribution to the Contributor pro rata to the extent
of such insurance reimbursement.
2.7 The Contributor represents and warrants to the Major Stockholders
that, as of the date of this Agreement, the Contributor owns options
to purchase 1,185,000 shares of Company Common Stock at an exercise
price of $1.50 per share, that such options constitute all of the
Contributor's "In-The-Money-Options" under the Merger Agreement and
that the Contributor also owns options to purchase 525,000 shares of
Company Common Stock at an exercise price of $7.50 per share.
3. PAYMENT OF CONTRIBUTION
3.1 Subject to clause 3.3, the Contributor will pay the Contribution in
respect of any Liability paid by the Major Stockholders or the Escrow
Agent within 30 days following receipt by him of written notice from
the Major Stockholders (the "Payment Notice") that such Contribution
is due and payable as a result of monies having been paid to an
Indemnitee by the Major Stockholders or the Escrow Agent to meet a
Claim. The Payment Notice shall (i) set forth the amount of the
Liability and the amount of Contribution sought from the Contributor,
(ii) describe in reasonable detail the basis for the applicable Claim,
(iii) indicate whether the Major Stockholders have sought coverage of
the Liability under the Major Stockholders' Insurance, if any,
pursuant to clause 2.5 and (iv) indicate whether the Major
Stockholders or the Escrow Agent paid for any portion of the Liability
in shares of Parent Common Stock, and if so, the value attributed to
such shares of Parent Common Stock, and otherwise provide evidence of
the payment of such Liability. The Major Stockholders shall also
provide such other information as the Contributor and his advisors may
reasonably request with respect to any such request for Contribution.
3.2 Any payment due under this Agreement will be paid in cash by way of a
banker's draft drawn on a Clearing Bank in favour of the relevant
payee and delivered to the address of the payee set forth in this
Agreement or such other method as may be agreed between the parties to
this Agreement; provided, however, that if the Major Stockholders or
Escrow Agent paid for any portion of the Liability in shares of Parent
Common Stock, the Contributor may, at his option, pay the Contribution
in shares of Parent Common Stock in the same proportion as paid by the
Major Stockholders or Escrow Agent, as the case may be, and at the
same deemed value per share. With respect to each Contribution paid by
the Contributor pursuant to this Agreement, the Contributor shall pay
an amount equal to 62.63% of the Contribution to the Trustee and an
amount equal to 37.37% of the Contribution to ▇▇. ▇▇▇▇▇▇, unless the
Payment Notice directs the Contributor to pay the Contribution in a
different proportion.
3.3 Notwithstanding the foregoing, the Major Stockholders agree that no
Contribution shall be payable by the Contributor under this Agreement
until after the 96th day following the Closing Date.
4. NOTICES
4.1 Any notice or other communication given in connection with this
Agreement will be in writing and will be delivered personally or sent
by pre-paid first class post (or air mail if overseas) or by facsimile
to the recipient's address or facsimile number set out in this
Agreement or to any other address or facsimile number which the
recipient has notified in writing to the sender received not less than
7 Business Days before the notice was despatched.
4.2 A notice is deemed given:
4.2.1 if delivered personally, upon delivery at the address provided
for in this clause 4; or
4.2.2 if sent by pre-paid first class post, on the tenth Business Day
after the date of posting; or
4.2.3 if sent by air mail, on the sixth Business Day after the date
of posting; or
4.2.4 if sent by facsimile, on completion of its transmission (with
confirmation)
provided that, if it is delivered personally or sent by
facsimile on a day which is not a Business Day or after 4pm on
a Business Day, it will instead be deemed given or made on the
next Business Day.
4.3 The provisions of this clause will not apply, in the case of service
of court documents, to the extent that such provisions are
inconsistent with the Civil Procedure Rules.
5. NO ASSIGNMENT
No party may agree to assign, transfer, charge or otherwise dispose of
or sub-contract any of its rights or obligations under this Agreement
without the prior written consent of all other parties to this
Agreement.
6. GENERAL
6.1 This Agreement will be binding and will enure for the benefit of the
personal representatives, permitted assigns and successors in title of
each of the parties.
6.2 Failure or delay by any party in exercising any right or remedy under
this Agreement will not operate as a waiver of it.
6.3 No amendment of any provision of this Agreement will be valid unless
the same shall be in writing and signed by the Contributor and each of
the Major Stockholders. No waiver of any right or remedy hereunder
will be valid unless the same shall be in writing and signed by the
party giving such waiver. Any waiver of any breach of this Agreement
will not be deemed a waiver of any subsequent breach and will in no
way affect the other terms of this Agreement.
6.4 The parties agree that they will do or procure the doing of all such
acts and things and will execute or procure the execution of all such
documents as may be required on or subsequent to this Agreement to
give effect to its terms.
6.5 This Agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, each of which so executed and
delivered will be an original, but all the counterparts will together
constitute one and the same agreement.
6.6 The parties to this Agreement do not intend that any of its terms will
be enforceable by virtue of the Contracts (Rights of Third Party) Act
1999 by any person not a party to it.
6.7 The formation, existence, construction, performance, validity and all
aspects whatsoever of this Agreement or of any term of this Agreement
will be governed by English law. The English courts will have
exclusive jurisdiction to settle any disputes which may arise out of
or in connection with this Agreement. The parties agree to submit to
that jurisdiction.
THIS AGREEMENT is executed as a deed and delivered on the date stated at
the beginning of this Deed.
SIGNED AS A DEED by )/s/ ▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ )------------------------
in the presence of: )▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Witness signature: ......................../s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: .....................................▇▇▇▇▇ ▇▇▇▇▇▇
Address: ..................................Blaumana ▇-▇, ▇▇▇▇, ▇▇▇▇▇▇
Occupation: ...............................Secretary
The COMMON SEAL of )
Atlas Trust Company (Jersey) Limited )
As TRUSTEE OF THE INTERNET INVESTMENTS, )
INC. EMPLOYEE SHARES TRUST )/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
was hereto affixed in the presence of: )------------------------
DIRECTOR
/s/ ▇▇▇ ▇. ▇▇▇▇
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DIRECTOR/AUTHORIZED SIGNATORY
SIGNED AS A DEED by )/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ )------------------------
in the presence of: )▇▇▇▇▇▇ ▇▇▇▇▇▇
Witness signature: ......................../s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: .....................................▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ..................................14 ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇
Occupation: ...............................Attorney
EXHIBIT A
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Merger Agreement
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