OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") is entered into as of January
24, 2000, by and between USANi Sub LLC, a Delaware limited liability company
(the "Grantee"), and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc., a California corporation (the
"Grantor").
(a) The Grantee and the Grantor are entering into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"),which provides
for, among other things, the merger of Grantor (the "Merger") with a wholly
owned subsidiary of a newly formed Delaware corporation ("Newco") and the
concurrent contribution (the "Contribution") by Grantee to Newco of all of the
outstanding limited liability interests of Internet Shopping Network LLC, a
Delaware limited liability company (the Merger and the Contribution, along with
the other transactions contemplated by the Merger Agreement are referred to
herein as the "Transactions").
(b) As a condition and inducement to Grantee's willingness to enter
into the Merger Agreement, the Grantee has requested that the Grantor grant to
the Grantee an option to purchase up to 1,533,281 shares of Common Stock, no par
value, of the Grantor (the "Common Stock"), upon the terms and subject to the
conditions hereof.
(c) In order to induce the Grantee to enter into the Merger Agreement,
the Grantor is willing to grant the Grantee the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
2. The Option; Exercise; Adjustments; Payment of Spread.
(a) Subject to the other terms and conditions set forth
herein, the Grantor hereby grants to the Grantee an irrevocable option (the
"Option") to purchase up to 1,533,281 (such number subject to adjustment as
provided herein) shares of Common Stock (the "Shares") at a cash purchase price
equal to $17.50 per share (the "Purchase Price"). The Option may be exercised by
the Grantee, in whole or in part, at any time, or from time to time, following
the occurrence of one of the events set forth in Section 3(d) hereof, and prior
to the termination of the Option in accordance with the terms of this Agreement.
(b) In the event the Grantee wishes to exercise the Option,
the Grantee shall send a written notice to the Grantor (the "Stock Exercise
Notice") specifying a date for the closing of such purchases not later than 10
Business Days and not earlier than three Business Days following the date such
notice is given; provided such period shall be extended as may be necessary to
meet any regulatory requirements, including expiration or termination of any
applicable waiting periods under the HSR Act. In the event of any change in the
Common Stock issued and outstanding by reason of a distribution,
reclassification stock dividend, split-up (including a reverse stock split),
combination, recapitalization, exchange of shares or similar transaction, the
type and number of shares or securities subject to the Option, and the Exercise
Price therefor, shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction so that the Grantee shall
receive upon exercise of the Option the same class and number of outstanding
shares or other securities or property that Grantee would have received upon
exercise of the Option if the Option had been exercised immediately prior to
such event or the record date therefor, as applicable. Without limiting the
parties' relative rights and obligations under the Merger Agreement, if any
additional shares of Common Stock are issued after the date of this Option
Agreement (other than pursuant to an event described in the first sentence of
this Section 2(b)), the number of shares of Common Stock then remaining subject
to the Option shall be adjusted so that, after such issuance of additional
shares, such number of shares then remaining subject to the Option, together
with any shares theretofore issued pursuant to the Option, equals 19.9% of the
number of shares of Common Stock then issued and outstanding. Notwithstanding
anything in this Agreement, the number of Shares subject to this Option shall
never exceed 19.9% of the outstanding shares of Common Stock of the Grantor.
3. Conditions to Delivery of Shares. The Grantor's obligation to
deliver Shares upon exercise of the Option is subject only to the conditions
that:
(a) no preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States prohibiting the delivery of the Shares shall be in effect;
(b) any applicable waiting periods under the HSR Act shall
have expired or been terminated;
(c) any other consent, approval, order, notification or
authorization, the failure of which to obtain or make would make the issuance of
the Shares illegal, shall have been obtained or made and be in full force and
effect; and
(d) (i) any person (other than Grantee or any of its
subsidiaries and other than any shareholder of Grantee that currently owns in
excess of 15% of the outstanding Common Stock) shall have acquired beneficial
ownership (as such term is defined in Rule 13d-3 under the Exchange Act or the
right to acquire beneficial ownership of, or any "group" (as such term is
defined under the Exchange
Act) shall have been formed which beneficially owns or has the right to acquire
beneficial ownership of, shares of Common Stock aggregating 15% or more of the
then outstanding Common Stock, (ii) any person shall have commenced or publicly
announced its intention to commence a tender offer for 15% or more of the
outstanding Common Stock or shall have publicly announced its intention to
effect an Alternative Transaction, (iii) the Merger Agreement is terminated
pursuant to Section 7.1(e) or 7.1(f), or (iv) the Merger Agreement is terminated
pursuant to Section 7.1(d) and at such time an Alternative Transaction was
publicly announced prior to such termination or an Alternative Transaction is
consummated, or a definitive agreement with respect thereto is executed by the
Company or any of its affiliates following such termination and on or prior to
the 12 month anniversary of such termination
4. The Closing.
(a) Any closing hereunder shall take place on the date
specified by the Grantee in its Stock Exercise Notice, at 9:30 a.m., local time,
at the offices of the Company, if the conditions set forth in Section 3(a), (b)
or (c) have not then been satisfied, on the second Business Day following the
satisfaction of such conditions, or at such other time and place as the parties
hereto may agree (the "Closing Date"). On the Closing Date, the Grantor will
deliver to the Grantee a certificate or certificates, representing the Shares in
the denominations designated by the Grantee in its Stock Exercise Notice and the
Grantee will purchase such Shares from the Grantor at the price per Share equal
to the Purchase Price. Any payment made by the Grantee to the Grantor shall be
made by wire transfer to a bank designated by the party receiving such funds.
(b) The certificates representing the Shares shall bear an
appropriate legend relating to the fact that such Shares have not been
registered under the Securities Act.
5. Representations and Warranties of the Grantor. The Grantor
represents and warrants to the Grantee that (a) the Grantor is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California and has the requisite corporate power and authority to enter
into and perform this Agreement; (b) the execution and delivery of this
Agreement by the Grantor and the consummation by it of the transactions
contemplated hereby have been duly authorized by the Board of Directors of the
Grantor and this Agreement has been duly executed and delivered by a duly
authorized officer of the Grantor and constitutes a valid, binding and
enforceable obligation of the Grantor; (c) the Grantor has taken all necessary
corporate action to authorize and reserve the Shares issuable upon exercise of
the Option and the Shares, when issued and delivered by the Grantor upon
exercise of the Option and paid for by Grantee as contemplated hereby, will be
duly authorized, validly issued, fully paid and non-assessable and free of
preemptive rights; (d) the execution and delivery of this Agreement by the
Grantor and, except as otherwise required by the HSR Act and for such filings as
are required by NASDAQ and under
any applicable federal security laws and regulations, the consummation by it of
the transactions contemplated hereby do not require the consent, waiver,
approval or authorization of or any filing with any person or public authority
and will not violate, result in a breach of or the acceleration of any
obligation under, or constitute a default under, any provision of Grantor's
Articles of Incorporation or By- laws, or any material indenture, mortgage,
lien, lease, agreement, contract, instrument, order, law, rule, regulation,
judgment, ordinance, decree or restriction by which the Grantor or any of its
Subsidiaries or any of their respective properties or assets is bound; (e) no
"fair price," "moratorium," "control share acquisition," "interested
shareholder" or other form of antitakeover statute or regulation, or similar
provision contained in the Articles of Incorporation or By-laws of Grantor, is
or shall be applicable to any of the transactions contemplated by this
Agreement, and the Board of Directors of Grantor has taken all action to approve
the transactions contemplated hereby to the extent necessary to avoid any such
application (including the Board of Directors of Grantor having determined that
the purchase price under Sections 8 and 9 hereof will not violate any rights of
any holder of the Company's Equity Securities or require any shareholder vote or
any other consent or waiver by any holders of the Company's Equity Securities,
in each case that have not been waived or obtained).
6. Representations And Warranties of the Grantee. The Grantee
represents and warrants to the Grantor that (a) the execution and delivery of
this Agreement by the Grantee and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary limited liability
company action on the part of the Grantee and this Agreement has been duly
executed and delivered by a duly authorized officer of the Grantee and
constitutes a valid and binding obligation of Grantee; and (b) the Grantee is
acquiring the Option and, if and when it exercises the Option, will be acquiring
the Shares issuable upon the exercise thereof for its own account and not with a
view to distribution or resale in any manner which would be in violation of the
Securities Act or the NASDAQ rules.
7. Listing of Shares; Filings; Governmental Consents. Subject to
applicable law and the rules and regulations of the National Association of
Securities Dealers ("NASD"), when the Option becomes exercisable hereunder, the
Grantor will promptly file an application to list the Shares on the NASDAQ and
will use all reasonable best efforts to obtain approval of such listing and to
effect all necessary filings by the Grantor under the HSR Act; provided,
however, that if the Grantor is unable to effect such listing on the NASDAQ by
the Closing Date, the Grantor will nevertheless be obligated to deliver the
Shares upon the Closing Date. Each of the parties hereto will use its reasonable
best efforts to obtain consents of all third parties and governmental
authorities, if any, necessary to the consummation of the transactions
contemplated.
8. Registration Rights.
(a) In the event that the Grantee shall desire to sell any of
the Shares within three years after the purchase of such Shares pursuant hereto,
and such sale requires, in the opinion of counsel to the Grantee, which opinion
shall be reasonably satisfactory to the Grantor and its counsel, registration of
such Shares under the Securities Act, the Grantor will cooperate with the
Grantee and any underwriters in registering such Shares for resale, including
promptly filing a registration statement which complies with the requirements of
applicable federal and state securities laws, and entering into an underwriting
agreement with such underwriters upon such terms and conditions as are
customarily contained in underwriting agreements with respect to secondary
distributions; provided that the Grantor shall not be required to have declared
effective more than two registration statements hereunder and shall be entitled
to delay the filing or effectiveness of any registration statement for up to 90
days if the offering would, in the judgment of the Board of Directors of the
Grantor, require premature disclosure of any material corporate development or
material transaction involving the Grantor or interfere with any previously
planned securities offering by the Grantor.
(b) If the Common Stock is registered pursuant to the
provisions of this Section 8, the Grantor agrees (i) to furnish copies of the
registration statement and the prospectus relating to the Shares covered thereby
in such numbers as the Grantee may from time to time reasonably request and (ii)
if any event shall occur as a result of which it becomes necessary to amend or
supplement any registration statement or prospectus, to prepare and file under
the applicable securities laws such amendments and supplements as may be
necessary to keep available for at least 90 days a prospectus covering the
Common Stock meeting the requirements of such securities laws, and to furnish
the Grantee such numbers of copies of the registration statement and prospectus,
as amended or supplemented, as may reasonably be requested. The Grantor shall
bear the cost of the registration, including all registration and filing fees,
printing expenses, and fees and disbursements of counsel and accountants for the
Grantor, except that the Grantee shall pay the fees and disbursements of its
counsel, and the underwriting fees and selling commissions applicable to the
shares of Common Stock sold by the Grantee. The Grantor shall indemnify and hold
harmless (x) Grantee, its affiliates and its officers and directors and each
person who controls Grantee within the meaning of the Securities Act or Exchange
Act and (y) each underwriter and each person who controls any underwriter within
the meaning of the Securities Act or the Exchange Act (collectively, the
"Underwriters") ((x) and (y) being referred to as "Indemnified Parties") against
any losses, claims, damages, liabilities or expenses, to which the Indemnified
Parties may become subject, insofar as such losses, claims, damages, liabilities
(or actions in respect thereof) and expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained or
incorporated by reference in any registration statement or prospectus filed
pursuant to this paragraph, 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 not misleading; provided, however, that the Grantor will not
be liable in any such case to the extent that any such loss, liability, claim,
damage or expense arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any such documents in
reliance upon and in conformity with written information furnished to the
Grantor by the Indemnified Parties expressly for use or incorporation by
reference therein.
(c) The Grantee and the Underwriters shall indemnify and hold
harmless the Grantor, its affiliates and its officers and directors and each
person who controls Grantor within the meaning of the Securities Act or Exchange
Act against any losses, claims, damages, liabilities or expenses to which the
Grantor, its affiliates and its officers and directors may become subject,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) and expenses arise out of or are based upon any untrue statement of any
material fact contained or incorporated by reference in any registration
statement filed pursuant to this paragraph, 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 not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Grantor by the
Grantee or the Underwriters, as applicable, specifically for use or
incorporation by reference therein.
9. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise specifically provided
herein.
10. Specific Performance. The Grantor acknowledges that if the Grantor
fails to perform any of its obligations under this Agreement immediate and
irreparable harm or injury would be caused to the Grantee for which money
damages would not be an adequate remedy. In such event, the Grantor agrees that
the Grantee shall have the right, in addition to any other rights it may have,
to specific performance of this Agreement. Accordingly, if the Grantee should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, the Grantor hereby waives the claim or defense that the Grantee has an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists.
11. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally, upon a receipt of a
transmittal confirmation if sent by facsimile or like transmission, and on the
next Business Day when sent by Federal Express, Express Mail or similar
overnight courier service to the parties at the following addresses or facsimile
numbers (or at such other address or facsimile number for a party as shall be
specified by like notice):
If to the Grantee:
USANi Sub LLC
Carnegie Hall Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Grantor:
The Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Coudert Brothers
▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. St. Clair
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12. Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties named herein and their respective successors and
assigns. Nothing in this Agreement, express or implied, is intended to confer
upon any person other than the Grantor or the Grantee, or their successors or
assigns, any rights or remedies under or by reason of this Agreement.
13. Entire Agreement; Amendments. This Agreement, together with the
Merger Agreement and the other documents contemplated thereby, contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
14. Assignment. No party to this Agreement may assign any of its rights
or obligations under this Agreement without the prior written consent of the
other party hereto, except that the Grantee may assign its rights and
obligations hereunder to any of its direct or indirect wholly owned
subsidiaries, but no such transfer shall relieve the Grantee of its obligations
hereunder if such transferee does not perform such obligations.
15. Headings. The section headings herein are for convenience only and
shall not affect the construction of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such state.
18. Termination of Option. The right to exercise the Option granted
pursuant to this Agreement shall terminate at the earlier of (i) the Effective
Time and (ii) the 12 month anniversary of Merger Termination Date; provided
that, if the Option cannot be exercised or the Shares cannot be delivered to
Grantee upon such exercise because the conditions set forth in Section 3(a), (b)
or (c) hereof have not yet been satisfied, the termination date set forth in
clause (ii) shall be extended until 30 days after such impediment to exercise or
delivery has been removed. All representations and warranties contained in this
Agreement shall survive delivery of and payment for the Shares.
19. Profit Limitation.
(a) Notwithstanding any other provision of this Agreement or
the Merger Agreement, in no event shall the Grantee's Total Profit (as
hereinafter defined) exceed $5,545,809 and, if it otherwise would exceed such
amount, the Grantee shall repay such excess amount to Grantor in cash (or the
purchase price for purposes of Section 8, shall be reduced) so that Grantee's
Total Profit shall not exceed $5,545,809 after taking into account the foregoing
actions.
(b) Notwithstanding any other provision of this Agreement,
this Option may not be exercised for a number of Shares as would, as of the date
of the Stock Exercise Notice, result in a Notional Total Profit (as defined
below) of more than $5,545,809 and, if exercise of the Option otherwise would
exceed such amount, the Grantee, at its discretion, may increase the Purchase
Price for that number of Shares set forth in the Stock Exercise Notice so that
the Notional Total Profit shall not exceed $5,545,809; provided, that nothing in
this sentence shall restrict any exercise of the
Option permitted hereby on any subsequent date at the Purchase Price set forth
in Section 2(a) hereof.
(c) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) (x) the amount of the cash
Termination Fee received by Grantee pursuant to Section 8.3(b) of the Merger
Agreement and Section 2(c) hereof, less (y) any repayment of such cash to
Grantor, (ii) (x) the net cash amounts received by Grantee pursuant to the sale
of Shares (or any other securities into or for which such Shares are converted
or exchanged) to any unaffiliated party, less (y) the Grantee's purchase price
for such Shares.
(d) As used herein, the term "Notional Total Profit" with
respect to any number of Shares as to which Grantee may propose to exercise this
Option shall be the Total Profit determined as of the date of the Stock Exercise
Notice assuming that this Option were exercised on such date for such number of
Shares and assuming that such Shares, together with all other Shares acquired
upon exercise of the Option and held by Grantee and its affiliates as of such
date, were sold for cash at the closing market price for the Common Stock as of
the close of business on the preceding trading day (less customary brokerage
commissions).
20. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the Grantee and the Grantor have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
USANi Sub LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Co-CEO