SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
InterActiveCorp (formerly USA Interactive)
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
45840Q 10 1
(CUSIP Number)
Charles Y. Tanabe, Esq. Pamela S. Seymon, Esq. George E. Bushnell III, Esq.
Senior Vice President and General Wachtell, Lipton, Rosen & Katz Vice President and Corporate Counsel
Counsel 51 West 52nd Street Vivendi Universal
Liberty Media Corporation New York, New York 10019 800 Third Avenue
12300 Liberty Boulevard (212) 403-1000 New York, New York 10022
Englewood, CO 80112 (212) 572-7000
(720) 875-5400
(Name, Address and Telephone Number of Persons Authorized
to receive Notices and Communications)
June 30, 2003
(Date of Event which Requires Filing of this Statement)
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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. 16 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. 11 of a Report on Schedule 13D
of Liberty Media Corporation, Amendment No. 26 of a Report on Schedule 13D of
Barry Diller, Amendment No. 16 of a Report on Schedule 13D of Vivendi
Universal Canada Inc. (formerly The Seagram Company Ltd.) and Universal
Studios, Inc., Amendment No. 10 of a Report on Schedule 13D of Vivendi
Universal, S.A., Amendment No. 21 of a Report on Schedule 13D of BDTV INC.,
Amendment No. 20 of a Report on Schedule 13D of BDTV II INC., Amendment No. 17
of a Report on Schedule 13D of BDTV III INC. and Amendment No. 16 of a Report
on Schedule 13D of BDTV IV INC.
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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*
WC
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
182,442,512 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
182,442,512 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
182,442,512 SHARES
________________________________________________________________________________
12 CHECK BOX 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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 28.2%. ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 51.3 % OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CANADA
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
31,611,308 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
31,611,308 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,611,308 SHARES
________________________________________________________________________________
12 CHECK BOX 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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.9%. ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 12.1 % OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
FRANCE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
56,611,308 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
56,611,308 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
56,611,308 SHARES
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.7%. ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 14.1 % OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
31,611,308 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
31,611,308 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,611,308 SHARES
________________________________________________________________________________
12 CHECK BOX 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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.9%. ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 12.1% OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
239,053,820 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
239,053,820 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
239,053,820 SHARES
________________________________________________________________________________
12 CHECK BOX 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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 36.9%. ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 65.4 % OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
239,053,820 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
239,053,820 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
239,053,820 SHARES
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[X]
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)
Percent of Class Represented by Amount in Row (11) 36.9% Assumes (1)
conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock, (2) the exercise of
options to purchase 41,845,888 shares of Common Stock which are currently
exercisable by Mr. Diller, and (3) the issuance to Liberty of 1,834,921
shares of Common Stock pursuant to Liberty's preemptive right with
respect to certain issuances of shares of Common Stock in connection with
the exercise of options. 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 65.4% of the voting power of the Company. See Item 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
239,053,820 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
239,053,820 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
239,053,820 SHARES
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[X]
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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 36.9% ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 65.4% OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
239,053,820 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
239,053,820 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
239,053,820 SHARES
________________________________________________________________________________
12 CHECK BOX 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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 36.9% ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 65.4% OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF NONE; SEE ITEM 5
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
239,053,820 SHARES
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING NONE; SEE ITEM 5
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
239,053,820 SHARES
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
239,053,820 SHARES
________________________________________________________________________________
12 CHECK BOX 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)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 36.9%. ASSUMES (1)
CONVERSION OF ALL SHARES OF CLASS B COMMON STOCK BENEFICIALLY OWNED BY
THE REPORTING PERSONS INTO SHARES OF COMMON STOCK, (2) THE EXERCISE OF
OPTIONS TO PURCHASE 41,845,888 SHARES OF COMMON STOCK WHICH ARE CURRENTLY
EXERCISABLE BY MR. DILLER, AND (3) THE ISSUANCE TO LIBERTY OF 1,834,921
SHARES OF COMMON STOCK PURSUANT TO LIBERTY'S PREEMPTIVE RIGHT WITH
RESPECT TO CERTAIN ISSUANCES OF SHARES OF COMMON STOCK IN CONNECTION WITH
THE EXERCISE OF OPTIONS. 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 65.4% OF THE VOTING POWER OF THE COMPANY. SEE ITEM 5.
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
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
INTERACTIVECORP
This Report on Schedule 13D relates to the common stock, par value
$.01 per share (the "Common Stock"), of InterActiveCorp, a Delaware
corporation (formerly "USA Interactive" and prior thereto, "USA Networks,
Inc.") ("IAC" 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 "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. 16 to the
Reporting Group Schedule 13D, Amendment No. 11 to the Liberty Schedule 13D,
Amendment No. 26 to the Barry Diller Schedule 13D, Amendment No. 16 to the
Universal Schedule 13D, Amendment No. 10 to the Vivendi Schedule 13D,
Amendment No. 22 to the BDTV Schedule 13D, Amendment No. 20 to the BDTV II
Schedule 13D, Amendment No. 17 to the BDTV III Schedule 13D and Amendment No.
16 to the BDTV IV Schedule 13D. The Reporting Group Schedule 13D, the Liberty
Schedule 13D, the 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.
ITEM 2. Identity and Background
Schedule 3 is incorporated herein by reference and amends and restates
Schedule 3 to the Schedule 13D in its 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 "Restrictions"), 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:
On May 18, 2003, a private foundation of which Mr. Diller is an officer
sold 87,500 shares of Common Stock on the open market for $34.9949 per share.
Mr. Diller disclaims beneficial ownership of the shares of Common Stock held
by the foundation. On June 3, 2003, Mr. Diller exercised options to acquire
775,000 shares of Common Stock at an exercise price of $4.7223 per share and
sold such shares on the open market for $37.00 per share.
As previously reported, the Amended and Restated Governance Agreement
among IAC, Vivendi Universal, Universal Studios, Inc., Liberty and Mr. Diller
(the "Governance Agreement") (filed as Exhibit 46 hereto) grants Liberty a
preemptive right with respect to issuances of the Company's capital stock,
subject to certain limitations, to maintain the percentage ownership in the
Company that Liberty had immediately prior to such issuances. In accordance
with the foregoing, on June 18, 2003 Liberty exercised its preemptive right to
acquire shares of Common Stock arising as a result of the issuance of shares
of Common Stock in connection with option exercises between May 2, 2003 and
June 3, 2003. Pursuant to such exercise of its preemptive right, on July 2,
2003, Liberty will acquire from the Company 1,834,921 shares of Common Stock
for an aggregate purchase price of $62,203,821.90 in cash, or $33.90 per share.
Pursuant to the terms of the preemptive rights provision, the purchase price
was based on the weighted average market price of shares of Common Stock for
options exercised between May 2, 2003 and June 3, 2003. The aggregate amount
due the Company from Liberty in connection with the foregoing purchase will be
drawn from the working capital of Liberty.
On June 30, 2003, pursuant to the prior exercise by IAC, as Barry
Diller's designee, of a right of first refusal to acquire Vivendi Universal's
remaining warrants (28,280,641 warrants in the aggregate) to acquire Common
Stock, IAC purchased from Vivendi Universal: (i) at a purchase price of $14.97
per warrant 16,187,094 warrants each representing the right to purchase one
share of Common Stock at an exercise price of $32.50 per share, and (ii) at a
purchase price of $13.65 per warrant 12,093,547 warrants each representing the
right to purchase one share of Common Stock at an exercise price of $37.50 per
share, for a total purchase price of $407,397,713.73. Pursuant to the
underlying warrant agreement (filed as Exhibit 49 hereto), the warrants were
canceled upon completion of the transaction.
Immediately following the completion of the transaction, Vivendi
Universal continued to hold, directly or indirectly, approximately 56.6
million IAC shares. As a result of its reduced interests in IAC, Vivendi
Universal and
its affiliates will no longer (i) be subject to the right of first refusal or
other transfer restrictions in the Amended and Restated Stockholders Agreement
among Liberty, Vivendi Universal, Universal and Mr. Diller (the "Stockholders
Agreement")(filed as Exhibit 47 hereto), or (ii) have the right to designate
any directors to the IAC board of directors under the Governance Agreement.
Accordingly, in connection with the completion of the transaction, Mr. Fourtou
resigned as a director of IAC.
Under agreements with IAC, however, Universal Studios, Inc. and its
affiliates must continue to hold the 56.6 million IAC shares generally free of
liens and in special purpose entities until satisfaction of the put or call on
the Class B preferred interests in Vivendi Universal Entertainment LLLP (held
by IAC), which can occur no earlier than May 2022. Mr. Diller will continue to
hold an irrevocable proxy on all such IAC shares pursuant to the Stockholders
Agreement and the Letter Agreement, dated March 31, 2003, from Vivendi
Universal, S.A. and Universal Studios, Inc. to Barry Diller (filed as
Exhibit 53 hereto).
In addition, Mr. Diller's standstill obligations under the Stockholders
Agreement, including his obligation not to acquire Vivendi Universal or any of
its subsidiaries or significant assets, will continue to apply in accordance
with the Stockholders Agreement.
As a result of the consummation of the sale of warrants by Vivendi
Universal to IAC described above, the members of the Reporting Group
beneficially own 174,423,824 of Common Stock (assuming (1) the exercise of
options to purchase 41,845,888 shares of Common Stock which are currently
exercisable by Mr. Diller, and (2) the issuance to Liberty of 1,834,921 shares
of Common Stock pursuant to Liberty's preemptive right with respect to certain
issuances of shares of Common Stock in connection with the exercise of
options) and 64,629,996 shares of Class B Common Stock. These shares
constitute 29.9% 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 [
%] 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, each share of Common Stock is entitled to one vote per share and
each share of outstanding preferred stock is entitled to two votes per share,
the Reporting Persons may be deemed to beneficially own equity securities of
the Company representing approximately 65.4% of the voting power of the
Company. The foregoing beneficial ownership figures exclude shares of Common
Stock beneficially owned by the executive officers and directors of Liberty,
Vivendi Universal, VU Canada and Universal and shares of Common Stock
beneficially owned by Diane Von Furstenberg, Mr. Diller's spouse, as to which
Mr. Diller disclaims beneficial ownership. The foregoing beneficial ownership
figures are based on there being outstanding as of the close of business on
June ___, 2003 [458,727,550] shares of Common Stock, 64,629,996 shares of
Class B Common Stock and 13,118,182 shares of preferred stock, which share
numbers were provided to the Reporting Group by the Company. 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.
On May 20, 2003, David J.A. Flowers, an executive officer of Liberty,
sold 20 shares of Common Stock in the open market for $32.92 per share.
Edgar Bronfman Jr., Vice Chairman of the Board of Directors of Vivendi
Universal, has disclosed in a filing on Form 4 beneficial ownership of 5,943
shares of Common Stock (which includes 443 share units, 27 of which share
units accrued under the Company's Non-Employee Director Deferred Compensation
Plan since the most recent amendment to this Schedule 13D), as well as the
grant on May 29, 2003, by the Company of 7,500 restricted stock units issued
pursuant to the Company's 2000 Stock and Annual Incentive Plan, which vest
over three years.
Marie-Josee Kravis, a member of the Board of Directors of Vivendi
Universal, has disclosed in a filing on Form 4 beneficial ownership of 2,019
shares of Common Stock (which includes 2,019 share units, 27 of which share
units accrued under the Company's Non-Employee Director Deferred Compensation
Plan since the most recent amendment to this Schedule 13D), as well as the
grant on May 29, 2003, by the Company of 7,500 restricted stock units issued
pursuant to the Company's 2000 Stock and Annual Incentive Plan, which vest
over three years.
Jean-Rene Fourtou, Chairman and Chief Executive Officer of Vivendi
Universal, has disclosed in a filing on Form 4 the grant on May 29, 2003 by
the Company of 7,500 restricted stock units issued pursuant to the Company's
2000 Stock and Annual Incentive Plan, which vest over three years.
On June 12, 2003, Andrew Kaslow, Senior Vice President of Human Resources
for Vivendi Universal, bought 350 shares of Common Stock in the open market
for $37.95 per share for 100 shares, $37.91 per share for 100 shares and
$37.86 per share for 150 shares.
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 this Schedule 13D is hereby
amended and supplemented by adding the following information:
The following documents are filed as Exhibits to this Schedule 13D:
Warrant Purchase Agreement, dated as of June 30, 2003, between
InterActiveCorp and Vivendi Universal, S.A.
Amendment No. 2 to the Partnership Agreement, dated as of June 24, 2003,
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., Mr. Diller and Universal Studios, Inc.
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: July 1, 2003
LIBERTY MEDIA CORPORATION
By: /s/ Charles Y. Tanabe
------------------------------
Name: Charles Y. Tanabe
Title: Senior Vice President
BARRY DILLER
By: /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
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./*/
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./*/
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 Amendment No. 1 thereto dated as
of November 25, 2002)./*/
49. Equity Warrant Agreement, dated as of May 7, 2003, 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./*/
53. Letter Agreement, dated March 31, 2003, from Vivendi Universal, S.A. and
Universal Studios, Inc. to Barry Diller./*/
54. Warrant Purchase Agreement, dated as of June 30, 2003, between
InterActiveCorp and Vivendi Universal, S.A.
55. Amendment No. 2 to the Partnership Agreement, dated as of June 24, 2003,
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., Mr. Diller and Universal Studios, Inc.
/*/ Previously filed.
EXHIBIT 54
28,280,641
Warrants
(in two tranches)
to purchase Common Stock, par value $0.01 per share of
INTERACTIVECORP
(formerly USA Interactive)
PURCHASE AGREEMENT
June 30, 2003
InterActiveCorp
152 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
Vivendi Universal, S.A., a societe anonyme organized under the laws of
France ("Vivendi" or the "Selling Shareholder"), proposes, subject to the
terms and conditions contained herein, to sell to InterActiveCorp, a Delaware
corporation (formerly USA Interactive, and prior thereto, USA Networks, Inc.,
the "Purchaser"), 16,187,094 warrants each representing the right to purchase
one share of common stock, par value $0.01 per share (the "Common Stock") of
the Purchaser, at an exercise price of $32.50 per share (the "Tranche B
Warrants") and 12,093,547 warrants each representing the right to purchase one
share of Common Stock at an exercise price of $37.50 per share (the "Tranche C
Warrants" and together with the Tranche B Warrants, the "Warrants"). The
Warrants are subject to the terms of an Equity Warrant Agreement dated as of
May 7, 2002 (the "Warrant Agreement"), between the Purchaser and The Bank of
New York, as Warrant Agent (the "Warrant Agent").
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 as in effect as of the date hereof (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 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 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; and
(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).
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
------------------------------------------------
The representations and warranties made in this Section assume the
accuracy of and compliance with the representations, warranties and covenants
of the Selling Shareholder in Sections 1 and 3.
The Purchaser represents and warrants, as of the date of this Agreement,
to Vivendi that the execution and delivery by the Purchaser of, and the
performance by the Purchaser of its obligations under, this Agreement have
been duly and validly authorized by all necessary corporate action on the part
of the Purchaser, and this Agreement has been duly executed and delivered by
Purchaser and constitutes a valid and binding agreement of the Purchaser
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).
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, Vivendi agrees to sell to the Purchaser, and the Purchaser agrees
to purchase from the Selling Shareholder, the Tranche B Warrants, at a
purchase price of $14.97 per warrant (the "Tranche B Purchase Price") and
the Tranche C Warrants , at a purchase price of $13.65 per warrant (the
"Tranche-C Purchase Price").
(b) Simultaneously with the execution hereof, the Selling
Shareholder shall deliver to the Warrant Agent a Notice of Transfer in
the form attached hereto as Exhibit A, together with the warrant
certificates representing the Warrants (the "Certificates") and any
transfer taxes payable in connection with the transfer of the Warrants to
the Purchaser against payment therefor by or on behalf of the Purchaser
to the account designated at least two business days prior to the date
hereof by the Selling Shareholder in an amount equal to the sum of
(i) the product of the Tranche B Purchase Price and the number of
Tranche B Warrants and (ii) the product of the Tranche C Purchase Price
and the number of Tranche C Warrants, by wire transfer in immediately
available funds. Delivery of and payment for the Warrants shall be made
at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street,
New York, New York 10019 simultaneously with the execution hereof.
4. COSTS AND EXPENSES.
-------------------
The Selling Shareholder 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
4. COSTS AND EXPENSES. (continued)
--------------------------------
Selling Shareholder; 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 Selling Shareholder 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 $1,000,000 in the aggregate.
5. 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:
InterActiveCorp
152 West 57th Street New York, New York 10019
Attention: General Counsel
Telephone: 212 314-7300
Facsimile: 212 314-7329
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Pamela Seymon
Telephone: 212 403-1000
Facsimile: 212 403-2000
(b) if to the Selling Shareholder, to:
Vivendi Universal, S.A.
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 LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: Faiza Saeed
Telephone: 212 474-1000
Facsimile: 212 474-3700
6. 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.
7. 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, any affiliate of the Purchaser 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
concerning the matters addressed herein.
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 Delaware.
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.
INTERACTIVECORP
By: /s/ Joanne Hawkins
----------------------------------
Name: Joanne Hawkins
Title: Vice President and Associate
General Counsel
EXHIBIT A
FORM OF NOTICE
June__, 2003
InterActiveCorp
Carnegie Hall Tower
152 W. 57th Street
New York, New York 10019
Attention: General Counsel
The Bank of New York
385 Rifle Camp Road
Reorganization Services Department, 5th Floor
West Paterson, New Jersey 07424
and
Stock Transfer Division
101 Barclay Street--11 East
New York, New York 10286
Attention: Doug Ditoro
NOTICE
Reference is made herein to (i) the Amended and Restated Stockholders
Agreement (the "Stockholders Agreement"), dated as of December 16, 2001, among
Universal Studios, Inc., Liberty Media Corporation, Barry Diller and Vivendi
Universal, S.A ("Vivendi") and (ii) the Equity Warrant Agreement (the "Warrant
Agreement"), dated as of May 7, 2002, between USA Networks, Inc. (renamed
InterActiveCorp, and prior thereto USA Interactive, "IAC") and The Bank of New
York (the "Equity Warrant Agent"). Capitalized terms used herein but not
otherwise defined shall have the meanings ascribed to them in the Warrant
Agreement.
Pursuant to a Purchase Agreement dated June 30, 2003, between IAC and Vivendi
(a copy of which is attached hereto), on June 30, 2003, Vivendi sold and
transferred to IAC 28,280,641 Equity Warrants (the "Transfer").
Vivendi (a member of the Vivendi Stockholder Group, as defined in the
Stockholders Agreement) represents that the Transfer complies with (i) the
transfer restrictions set forth in the Stockholders Agreement, including
Sections 4.3 and 4.5 thereof and (ii) applicable U.S. Federal and state
securities laws, if any. Vivendi further represents that all stamp, other tax
and other governmental charges that are due or owed in connection with the
Transfer, if any, have been paid.
Pursuant to Section 6.1 of the Warrant Agreement, Vivendi hereby irrevocably
surrenders to the Equity Warrant Agent Equity Warrant Certificates Nos. W11,
representing 16,187,094 Equity Warrants, and W8, representing 12,093,547
Equity Warrants (collectively, the Surrendered Warrant Certificates), together
with this Notice, and irrevocably requests that (i) the Transfer be registered
and appropriate entry be made in the Equity Warrant Register and (ii) the
Equity Warrant Agent cancel the Surrendered Warrant Certificates in accordance
with Section 6.3 of the Warrant Agreement and confirm in writing such
cancellation with IAC.
Please feel free to contact us or our counsel, Cravath, Swaine & Moore LLP, if
you have any questions.
Best regards,
VIVENDI UNIVERSAL, S.A.
By:
-----------------------
Name: Dominique Gibert
Title: Deputy Chief Financial Officer
Copies to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Pamela S. Seymon, Esq.
Andrew J. Nussbaum, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: Faiza J. Saeed, Esq.
EXHIBIT 55
AMENDMENT NO. 2, dated as of June 24, 2003 (this "Amendment "),
to the AMENDED AND RESTATED LIMITED LIABILITY LIMITED PARTNERSHIP
AGREEMENT (as previously amended, supplemented or otherwise
modified, 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, 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,
INTERACTIVECORP (formerly known as USA Interactive and, prior
thereto, 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
("Universal"), 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
amending and restating the following definitions therein:
""VUE Term Loan Agreement" shall mean the Loan Agreement, dated
as of June 24, 2003, by and among the Partnership, Bank of America,
N.A. and JPMorgan Chase Bank, as co-administrative agents, Barclays
Bank plc, as syndication agent, JPMorgan Chase Bank, as collateral
agent and paying agent and the Lenders from time to time party
thereto."
""VUE Security Agreement" shall mean the Amended and Restated
Guarantee and Security Agreement, dated as of June 24, 2003, among
the Partnership, the guarantors party thereto and JPMorgan Chase
Bank, as administrative agent."
(b) Article XIII of the Partnership Agreement is hereby amended and
restated in its entirety to read as follows:
"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 Section 7(e)(iii) 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."
(c) Section 10.03(c) of the Partnership Agreement is hereby amended
by deleting in its entirety the second sentence thereof and replacing it
with the following sentence:
"Except as set forth in Section 10.03(e), the purchase and sale of
the Selling Party's Common Interests shall be consummated at a
closing the date and time of which shall be selected by the
Purchasing Party and provided in writing at least seven days prior
thereto; provided that, in the case of a Diller Put or a Diller
Call, such date shall not be later than the 20th Business Day
following the date of receipt by the relevant party of the
applicable exercise notice, and in all other cases such date shall
not be later than the 20th Business Day following the date of the
determination of the Appraised Value."
(d) Section 10.03(d)(iii) of the Partnership Agreement is hereby
amended and restated in its entirely as follows:
"(iii) notwithstanding anything to the contrary in clauses (i) or
(ii) of this Section 10.03(d), the Appraised Value of the
Partnership with respect to a Diller Put or a Diller Call shall be
determined as of April 1, 2003 by a single Investment Bank that is
mutually agreeable to Universal and Diller (each acting in its sole
discretion). In the event that Universal and Diller are unable to
mutually agree for any reason on the Investment Bank within 5 days
following the date of receipt by the relevant party of the
applicable exercise notice, Universal and Diller hereby agree that
for purposes of Section 10.03(b) of the Partnership Agreement, the
purchase price with respect to the Diller Put and the Diller Call
shall be $275,000,000."
(e) Section 10.03(e) of the Partnership Agreement is hereby amended
and restated in its entirety to read as follows:
"(e) At the election of the Purchasing Party and in accordance with
this Section 10.03(e), payment of the purchase price upon the
exercise of a Call
or a Put may be made in Vivendi Ordinary Shares. In order for the
Purchasing Party to elect to deliver Vivendi Ordinary Shares, the
Purchasing Party shall specify that it is electing to deliver
Vivendi Ordinary Shares in lieu of cash in the written notice of the
Purchasing Party designating the closing date pursuant to Section
10.03(c) (without giving effect to the proviso therein) (the
"Closing Date Notice"). In the event that the Purchasing Party
elects to deliver Vivendi Ordinary Shares pursuant to this Section
10.03(e), the Selling Party shall be entitled to the rights set
forth in Section 10.03(f), and the closing of the Put or Call shall
take place over a consecutive 15 Business Day period commencing on
the closing date specified in the Closing Date Notice; provided that
the closing date specified in the Closing Date Notice shall be a
date within 20 Business Days following the date of receipt by the
relevant party of the Closing Date Notice. On each day during the 15
Business Day closing period, the Purchasing Party shall deliver to
USAi or its Affiliates or Diller, as the case may be, 1/15th of the
applicable purchase price set forth in Section 10.03(a) or Section
10.03(b) in Vivendi Ordinary Shares (or, if Diller requests, other
common equity securities of Vivendi listed on an exchange other than
that on which the Vivendi Ordinary Shares are listed and
representing an equivalent number of Vivendi Ordinary Shares) valued
based on the closing price on that day of Vivendi Ordinary Shares on
the primary exchange on which it trades, as reported by Bloomberg in
U.S. dollars. Any Vivendi Ordinary Shares (or other common equity
securities of Vivendi) delivered by the Purchasing Party pursuant to
this Section 10.03(e) shall be delivered no later than one hour
after the primary exchange on which the Vivendi Ordinary Shares (or
other common equity securities of Vivendi) being delivered hereunder
closes free and clear of all Liens and shall, in the case of Vivendi
Ordinary Shares, be listed for trading on the Paris Bourse and
freely transferable on the Paris Bourse. Solely for purposes of this
Section 10.03(e), the Selling Party shall be required to deliver the
assignments and bills of sale referenced in Section 10.03(c)
assigning 1/15th of its Common Interests to the Purchasing Party
free and clear of any Liens, on each day of the 15 Business Day
closing period described herein. The ability of Vivendi or any
successor or new parent entity to Vivendi to issue any shares
hereunder shall be subject to (i) satisfaction of the listing
provisions of the definition of Vivendi Ordinary Shares, (ii) the
Selling Party receiving over the 15 Business Day closing period
securities that represent less than 5% of the publicly-traded common
stock or ordinary shares of Vivendi or such successor or new parent
entity immediately prior to such 15 Business Day period, assuming,
for purposes of calculating compliance with such 5% threshold, that
the number of securities issued is calculated based on the closing
price of such securities on the primary exchange on which such
securities trade on the date of the Closing Date Notice, and (iii)
Vivendi's (or such successor's or such new parent entity's)
continued ownership and control of the Partnership and the cable
assets contained therein. For purposes of this Section 10.03(e), a
Business Day means any day other than a Saturday, Sunday, a U.S.
Federal holiday or a day on which banks in France are closed."
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.
SECTION 6. Jurisdicition. Each of the Partners (i) consents to and
submits itself and its property to the personal jurisdiction of any Federal or
state court located in the State of Delaware in the event of any dispute
arising out of or relating to this Amendment, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that it will not bring any
action relating to this Agreement in any court other than a Federal or state
court sitting in the State of Delaware and (iv) hereby waives any rights such
Partner may have to personal service of summons, complaint or other process in
connection therewith, and agrees that service may be made by registered or
certified mail addressed to such Partner and sent in accordance with the
provisions of Article XIV of the Partnership Agreement. It is hereby expressly
understood by the parties hereto that this Section 6 shall also be applicable
to Amendment No. 1, dated as of November 25, 2002, to the Partnership
Agreement.
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: Vice President Legal
UNIVERSAL PICTURES
INTERNATIONAL HOLDINGS 2 BV,
By /s/ Ad Heskes
------------------------------------
Name: Ad Heskes
Title: Vice President Legal
UNIVERSAL PICTURES
INTERNATIONAL HOLDINGS 2 BV,
By /s/ Nick Doornberg
------------------------------------
Name: Nick Doornberg
Title: Finance Director
NYCSPIRIT CORP. II,
By /s/ George E Bushnell III
------------------------------------
Name: George E Bushnell III
Title: President
INTERACTIVECORP,
By /s/ Dara Khosrowshahi
------------------------------------
Name: Dara Khosrowshahi
Title: Executive Vice President and
Chief Financial Officer
USANi SUB LLC,
By /s/ Dara Khosrowshahi
------------------------------------
Name: Dara Khosrowshahi
Title: Vice President
NEW-U STUDIOS HOLDINGS, INC.,
By /s/ Dara Khosrowshahi
------------------------------------
Name: Dara Khosrowshahi
Title: Vice President
BARRY DILLER,
By /s/ Barry Diller
------------------------------------
UNIVERSAL STUDIOS, INC.,
By /s/ Karen Randall
------------------------------------
Name: Karen Randall
Title: Executive Vice President and
General Counsel