SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
================================================================================
SCHEDULE 13D/A*
Under the Securities Exchange Act of 1934
USA Networks, Inc.
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
902984 10 3
(CUSIP Number)
Charles Y. Tanabe, Esq. Pamela S. Seymon, Esq. George Bushnell III, Esq.
Senior Vice President Wachtell, Lipton, Rosen Vivendi Universal, S.A.
and General Counsel & Katz 375 Park Avenue
Liberty Media Corporation 51 West 52nd Street New York, NY 10152
12300 Liberty Boulevard New York, NY 10019 (212) 572-7000
Englewood, CO 80112 (212) 403-1000
(720) 875-5400
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 16, 2001
(Date of Event which Requires Filing of this Statement)
================================================================================
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [__]
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
-------------------
* Note: This statement constitutes Amendment No. 9 of the Report on
Schedule 13D of the reporting group consisting of Liberty Media
Corporation, Barry Diller, The Seagram Company Ltd., Vivendi Universal,
S.A., Universal Studios, Inc. and the BDTV Entities. This statement
also constitutes Amendment No. 4 of a Report on Schedule 13D of Liberty
Media Corporation, Amendment No. 19 of a Report on Schedule 13D of Barry
Diller, Amendment No. 9 of a Report on Schedule 13D of The Seagram
Company Ltd. and Universal Studios, Inc., Amendment No. 3 of a Report on
Schedule 13D of Vivendi Universal, S.A., Amendment No. 15 of a Report on
Schedule 13D of BDTV INC., Amendment No. 13 of a Report on Schedule 13D
of BDTV II INC., Amendment No. 10 of a Report on Schedule 13D of
BDTV III INC. and Amendment No. 9 of a Report on Schedule 13D of BDTV IV
INC.
2
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Liberty Media Corporation
(2) Check the Appropriate Box if a member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
3
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
The Seagram Company Ltd.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
Canada
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
4
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Vivendi Universal, S.A.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
France
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
5
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Universal Studios, Inc.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X)
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
6
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Barry Diller
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
United States
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty (ii) 282,161,530 shares of Common Stock or
Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company. See Item 5.
(14) Type of Reporting Person (See Instructions)
IN
7
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV INC.
(2) Check the Appropriate Box if a member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
8
BDTV II INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
9
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV III INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty, (ii) 282,161,530 shares of Common Stock
or Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
10
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
BDTV IV INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not Applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [_]
(6) Citizenship or Place of Organization
Delaware
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power None; see Items 3 & 5
(8) Shared Voting Power 155,445,880 shares
(9) Sole Dispositive Power None; see Items 3 & 5
(10) Shared Dispositive Power 155,445,880 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 155,445,880 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [X]
Excludes shares beneficially owned by the executive officers and directors of
Liberty, Vivendi Universal, Seagram and Universal. Excludes (i) Liberty
Exchange Shares issuable to Liberty (ii) 282,161,530 shares of Common Stock or
Class B Common Stock issuable to Universal upon exchange of shares of USANi
LLC ("LLC Shares"), and (iii) 45,774,708 shares of Common Stock issuable to
Liberty upon exchange of LLC Shares, each of which is subject to terms and
conditions set forth in the Liberty Exchange Agreement and the Transaction
Agreements previously filed by the parties as well as the agreements entered
into in connection with the Proposed Transaction disclosed in this Schedule
13D. See Item 5.
(13) Percent of Class Represented by Amount in Row (11) 36.6%
Assumes conversion of all shares of Class B Common Stock beneficially owned by
the Reporting Persons into shares of Common Stock and the exercise of options
to purchase 47,120,888 shares of Common Stock which are currently exercisable
by Mr. Diller. 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 72.9% of the
voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
11
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Statement of
LIBERTY MEDIA CORPORATION,
BARRY DILLER,
UNIVERSAL STUDIOS, INC.,
THE SEAGRAM COMPANY LTD.,
VIVENDI UNIVERSAL, S.A.,
BDTV INC.,
BDTV II INC.,
BDTV III INC.
and
BDTV IV INC.
Pursuant to Section 13(d) of the Securities Exchange Act of 1934
in respect of
USA NETWORKS, INC.
This Report on Schedule 13D relates to the common stock, par value
$.01 per share (the "Common Stock"), of USA Networks, Inc., a Delaware
corporation ("USA" or the "Company"). The Reports on Schedule 13D, as amended
and supplemented, originally filed with the Commission by (i) the reporting
group (the "Reporting Group") consisting of Liberty Media Corporation, a
Delaware corporation ("Liberty"), Mr. Barry Diller, Universal Studios, Inc., a
Delaware corporation ("Universal"), The Seagram Company Ltd., a Canadian
corporation ("Seagram"), Vivendi Universal, S.A., a societe anonyme organized
under the laws of the Republic of France ("Vivendi Universal"), BDTV INC., a
Delaware corporation ("BDTV"), BDTV II INC., a Delaware corporation ("BDTV
II"), BDTV III INC., a Delaware corporation ("BDTV III"), and BDTV IV, INC., a
Delaware corporation ("BDTV IV") (each, a "Reporting Person"), on February 24,
1998 (the "Reporting Group Schedule 13D"), (ii) Liberty on July 19, 1999 (the
"Liberty Schedule 13D"), (iii) Mr. Diller on August 29, 1995 (the "Barry
Diller Schedule 13D"), (iv) Universal and Seagram 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. 9 to the Reporting Group Schedule 13D,
Amendment No. 4 to the Liberty Schedule 13D, Amendment No. 19 to the Barry
Diller Schedule 13D, Amendment No. 9 to the Universal Schedule 13D, Amendment
No. 3 to the Vivendi Schedule 13D, Amendment No. 15 to the BDTV Schedule 13D,
Amendment No. 12 to the BDTV II Schedule 13D, Amendment No. 10 to the BDTV III
Schedule 13D and Amendment No. 9 to the BDTV IV Schedule 13D. The Reporting
Group Schedule 13D, the Liberty Schedule 13D, the Barry Diller Schedule 13D,
the Universal Schedule 13D, the Vivendi Schedule 13D, the BDTV Schedule 13D,
the BDTV II Schedule 13D, the BDTV III Schedule 13D and the BDTV IV Schedule
13D (each, as amended) are collectively referred to as the "Schedule 13D."
Capitalized terms not defined herein have the meanings given to such terms in
the prior Reports on Schedule 13D referred to in this paragraph.
12
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
The information contained in Item 2 of this Schedule 13D is hereby
amended and supplemented by adding the following information:
On August 10, 2001, AT&T Corp. ("AT&T"), the former parent
corporation of Liberty, redeemed (the "Redemption") each outstanding share of
Class A Liberty Media Group common stock, par value $1.00 per share (the
"Class A Liberty Media Group Common Stock"), and Class B Liberty Media Group
common stock, par value $1.00 per share (the "Class B Liberty Media Group
Common Stock" and together with the Class A Liberty Media Group Common Stock,
the "Liberty Media Group Common Stock"), in exchange for one share of a
corresponding series of common stock of Liberty. Prior to the Redemption, the
Liberty Media Group Common Stock was a tracking stock of AT&T intended to
reflect the economic performance of the businesses and assets attributed to
AT&T's Liberty Media Group. Upon the redemption, Liberty became the holder of
all of the businesses and assets formerly attributed to AT&T's Liberty Media
Group. As a result of the Redemption, Liberty became an independent, publicly
traded company.
Liberty's principal business address is 12300 Liberty Boulevard,
Englewood, Colorado 80112. Schedule 3 attached to this Statement contains the
following information concerning each director, executive officer and
controlling person of Liberty: (i) name and residence or business address;
(ii) principal occupation or employment; and (iii) the name, principal
business and address of any corporation or other organization in which such
employment is conducted. Schedule 3 is incorporated herein by reference and
amends and restates Schedule 3 and Schedule 4 to the Schedule 13D in their
entirety.
To the knowledge of Liberty, each of the persons named on Schedule 3
(the "Schedule 3 Persons") is a United States citizen, except for David J.A.
Flowers, who is a Canadian citizen. During the last five years, neither
Liberty nor any of the Schedule 3 Persons (to the knowledge of Liberty) has
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors). During the last five years, neither Liberty nor any of
the Schedule 3 Persons (to the knowledge of Liberty) has been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and, as a result of such proceeding, is or was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
On December 6, 2001, Edgar Bronfman, Jr., Executive Vice Chairman of
Vivendi Universal and the Vice Chairman of the Board of Directors of Vivendi
Universal, announced that he would resign from his position as Executive Vice
Chairman. Schedule 5 is incorporated herein by reference and amends and
restates Schedule 5 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.
13
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 Item 6 or contained in the agreements attached as
Exhibits hereto or as previously filed as exhibits to this Schedule 13D, the
Reporting Persons or their respective subsidiaries may purchase additional
shares of Common Stock in the open market or in private transactions.
Alternatively, depending on market conditions and other factors, and subject
to any restrictions described in Item 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 Item 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 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:
As previously disclosed, Universal currently owns its interest in
the Company primarily through its ownership of shares of USANi LLC. Liberty
also owns a portion of its interest in the Company through its ownership of
shares of USANi LLC and shares of Home Shopping Network, Inc. ("Holdco"), a
subsidiary of the Company. Subject to certain restrictions, LLC Shares and
Holdco shares are exchangeable into Common Stock and Class B Common Stock of
the Company.
Following the sale on August 21, 2001 of its television broadcast
stations and associated broadcast licenses (the "Station Sale"), the Company
informed Universal that the FCC foreign ownership restrictions no longer limit
Universal's ability to own its equity interest directly in the Company. The
Company also notified Liberty that as a result of the Station Sale, Liberty is
permitted under FCC regulations to own shares of Common Stock issuable upon
exchange of its LLC Shares and Holdco shares. The Company, Liberty and
Universal have since discussed various alternatives in light of the changes
resulting from the Station Sale.
On December 16, 2001, Vivendi Universal and the Company announced an
agreement between the Company, Liberty and Vivendi Universal relating to a
series of transactions pursuant to which Vivendi Universal would acquire
control of certain entertainment assets of the Company (such transaction and
the related transactions described in this Schedule 13D, the "Proposed
Transaction"). In connection with the Proposed Transaction, the Company,
Universal and Liberty agreed in the Transaction Agreement, dated as of
December 16, 2001 (the "Transaction Agreement"), among Vivendi Universal,
Universal, the Company, USANi LLC, Liberty and Mr. Diller, that the Company
will not take certain actions
14
with respect to the LLC Shares and the Holdco shares, including causing
Liberty or Universal to exchange such LLC Shares and Holdco shares, prior to
the closing (the "Closing") of the Proposed Transaction. In addition, pursuant
to the terms of the Transaction Agreement, Universal has an obligation to
deliver to USANi LLC for cancellation all of the 282,161,530 LLC Shares that
it currently holds as well as the 38,694,982 LLC Shares that Liberty is
required to deliver to Universal as a consequence of the exchanges specified
in the Merger Agreement (as defined below). Liberty also has an obligation to
deliver 7,079,726 LLC Shares to the Company to be exchanged for shares of
Common Stock.
On October 20, 2001, 4,750,000 options to purchase Common Stock
vested and became exercisable by Mr. Diller. As a result, currently, the
members of the Reporting Group beneficially own 155,445,880 shares,
corresponding to 36.6% of the shares of Common Stock. 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 72.9% of the voting power of the Company.
The Proposed Transaction would, if consummated, result in changes to
the beneficial ownership of Common Stock of the Reporting Persons. After
giving effect to the Proposed Transaction, the Reporting Group would
beneficially own 37.7% of the shares of Common Stock and Class B Common Stock
of the Company (without giving effect to the exchange of the Holdco shares
held by Liberty or the Company's pending transaction with Expedia). Mr. Diller
would continue to be entitled to a proxy with respect to shares representing
approximately 73.1% of the voting power of the Company. The number of shares
owned by Mr. Diller in the Company will not be affected by the Proposed
Transaction. As a result of the Proposed Transaction, USANi LLC will be owned
by the Company and Home Shopping Network, Inc.
Robert R. Bennett, President and Chief Executive Officer of Liberty,
owns 26,096 shares of Common Stock.
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.2
Each Reporting Person disclaims beneficial ownership of the shares
of Common Stock beneficially owned by each of the other Reporting Persons.
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.
On December 16, 2001, in connection with the Proposed Transaction,
certain Reporting Persons and additional parties entered into the following
agreements with respect to the shares of Common Stock. The following summary
description of these agreements is qualified in its
-----------------------
2 Confirm.
15
entirety by reference to the exhibits hereto including such documents, which
exhibits are incorporated herein by reference.
I. TRANSACTION AGREEMENT
A. General
The Transaction Agreement provides for the structuring of a limited
liability limited partnership (the "Partnership") among certain of the parties
pursuant to a Limited Liability Limited Partnership Agreement. The Partnership
will own (i) the film, television and theme park businesses currently
conducted by Universal Studios, Inc. and (ii) the programming, television
distribution, cable networks and film businesses conducted by the Company and
its affiliates, including USA Films LLC, Studios USA LLC and USA Cable LLC.
B. Transfer of Interests
At the Closing, subject to satisfaction of certain conditions, and
immediately after the exchanges contemplated by the Merger Agreement (as
discussed below), among other things, the operative provisions of the Exchange
Agreement will be terminated and the LLC Shares will no longer be exchangeable
into shares of the Company. Thereafter, USANi LLC will distribute to Universal
interests in certain of its subsidiaries in return for the cancellation of the
320,856,512 LLC Shares that will be owned by Universal and its affiliates as
of the Closing. Universal and its affiliates will contribute their rights and
interests in the businesses described above (including the interests
distributed by USANi LLC) to the Partnership, and the Company, USANi LLC and
their affiliates will contribute to the Partnership their rights and interests
in the businesses described above, in each case, in return for interests in
the Partnership.
It is also contemplated as part of the transactions that the Company
will issue warrants (the "Equity Warrants") in three tranches to Universal to
purchase an aggregate of 60,467,735 shares of Common Stock and that the number
of Equity Warrants will be reduced if the proposed transaction between the
Company and Expedia is not consummated. The terms of the Equity Warrants are
described in further detail below.
II. MERGER AGREEMENT
The Agreement and Plan of Merger and Exchange (the "Merger
Agreement"), dated as of December 16, 2001, among Vivendi Universal,
Universal, Liberty and their respective affiliates signatories thereto,
provides for share exchanges and mergers that would, if consummated, affect
the Reporting Group's beneficial ownership of the Common Stock.
A. Share Exchanges and Mergers
Pursuant to the Merger Agreement, subject to satisfaction of
customary conditions precedent, subsidiaries of Liberty will transfer to
affiliates of Vivendi Universal 25,000,000 shares of Common Stock of the
Company and certain other assets in exchange for ordinary shares of Vivendi
Universal. In addition, Vivendi Universal will acquire, through merger of its
subsidiaries with subsidiaries of Liberty, 38,694,982 LLC Shares in return for
ordinary shares of Vivendi Universal. As consideration for the shares of
Common Stock, the LLC Shares and the other assets, Vivendi Universal will
transfer to Liberty and its affiliates 37,386,436 ordinary shares of Vivendi
Universal, which will be delivered in the form of American Depositary Shares.
16
III. AMENDED AND RESTATED GOVERNANCE AGREEMENT
A. General
On December 16, 2001, the Company, Vivendi Universal, Universal,
Liberty and Mr. Diller entered into an Amended and Restated Governance
Agreement (the "Amended and Restated Governance Agreement"). The Amended and
Restated Governance Agreement will be effective as of the Closing and sets
forth restrictions on the acquisition of additional equity securities of the
Company and other conduct restrictions, in each case, applicable to Vivendi
Universal and its affiliates. In addition, the Amended and Restated Governance
Agreement governs Vivendi Universal's and Liberty's rights of representation
on the Company's Board of Directors and Liberty's and Mr. Diller's rights to
approve certain actions by the Company.
The Amended and Restated Governance Agreement amends and restates
the Governance Agreement, dated as of October 19, 1997, and provides for
certain amendments to the Investment Agreement, dated as of October 19, 1997,
as amended from time to time, eliminating preemptive rights held by Universal,
but retaining these rights for Liberty, as described in further detail below.
B. Restrictions on Universal's Acquisition of Additional Equity
Securities and other Conduct Restrictions
Pursuant to the Amended and Restated Governance Agreement, Vivendi
Universal agrees that neither it nor its affiliates will acquire the
beneficial ownership of any additional equity securities of the Company until
such time that the equity securities beneficially owned by Vivendi Universal
and its affiliates represent less than 20% (the "Trigger Date") of the total
equity securities of the Company. Following the Trigger Date, Vivendi
Universal will not acquire beneficial ownership of any additional equity
securities of the Company if following such acquisition Vivendi Universal and
its affiliates would beneficially own equity securities that represent more
than 20% of the total equity securities of the Company. Notwithstanding any of
the foregoing, Vivendi Universal and its affiliates may continue to
beneficially own any Common Stock currently owned by them and any Common Stock
issuable upon exercise of such Equity Warrants. Such restrictions will cease
to apply upon the later of (i) the "CEO Termination Date" (i.e., the date that
is the later of the date that Mr. Diller no longer serves as Chief Executive
Officer of the Company and such date that Mr. Diller no longer holds a proxy
to vote Universal's shares of the Company under the Amended and Restated
Stockholders Agreement) and (ii) the date following which Vivendi Universal
ceases to have the right to appoint a director to the Board of Directors of
the Company.
During the same period, Vivendi Universal and its affiliates have
agreed not to: (i) act, alone or in concert with others, to seek to affect to
influence the management, business or operations of the Company; (ii) enter
into any kind of arrangement (e.g., a voting trust) with respect to the voting
of equity securities of the Company; (iii) propose any merger or other
business combination involving the Company, provided that discussions to that
effect are not prohibited if Mr. Diller participates; (iv) make or participate
in a solicitation of proxies to vote equity securities in the Company; (v)
act, alone or in concert with others, for the purpose of acquiring voting or
selling equity securities in the Company, or (vi) request any amendment to or
waiver of any of these covenants.
17
Except in connection with open market transactions, Vivendi Universal
and its affiliates are not entitled to transfer to any single third party
transferee, in the aggregate, 10% or more of the total equity securities of
the Company, unless Vivendi Universal and its affiliates cause such third
party transferee to agree to the acquisition and conduct restrictions
described above.
C. Representation on the Board of Directors and CEO
Under the terms of the Amended and Restated Governance Agreement,
immediately following the Closing:
(i) the Board of Directors of the Company will include Jean-Marie
Messier and Phillippe Germond;
(ii) Vivendi Universal will have the right to nominate up to two
directors so long as the number of equity securities beneficially
owned by Vivendi Universal and its affiliates is at least equal to
75% of the number of equity securities beneficially owned by Vivendi
Universal and its affiliates immediately following the Closing (so
long as the ownership percentage of Vivendi Universal and its
affiliates is at least equal to the lesser of (x) 15% of the total
equity securities of the Company and (y) the percentage that is five
percentage points less than the percentage of the total equity
securities beneficially owned by Vivendi Universal and its affiliates
immediately following the Closing); and
(iii) Vivendi Universal will have the right to nominate one director
so long as Vivendi Universal and its affiliates beneficially own a
number of equity securities at least equal to 50% of the number of
the equity securities beneficially owned by them immediately
following the Closing (so long as the ownership percentage of Vivendi
Universal and its affiliates is at least equal to 10% of the total
equity securities of the Company).
Under the terms of the Amended and Restated Governance Agreement,
immediately following the Closing:
(i) the Board of Directors of the Company will include John C.
Malone, Chairman of the Board of Directors of Liberty, and Robert
R. Bennett, President and Chief Executive Officer of Liberty;
(ii) Liberty will have the right to nominate up to two directors so
long as the number of equity securities beneficially owned by Liberty
and its affiliates is at least equal to 75% of the number of equity
securities beneficially owned by Liberty and its affiliates
immediately following the Closing (so long as the ownership
percentage of Liberty and its affiliates is at least equal to the
lesser of (x) 15% of the total equity securities of the Company and
(y) the percentage that is five percentage points less than the
percentage of the total equity securities beneficially owned by
Liberty and its affiliates immediately following the Closing);
(iii) Liberty will have the right to nominate one director so long as
Liberty beneficially owns a number of equity securities at least
equal to 50% of the number of the equity securities beneficially
owned by them immediately following the Closing (so long as Liberty's
ownership percentage is at least equal to 5% of the total equity
securities of the Company); and
18
(iv) the Company will use reasonable best efforts to cause one of
Liberty's designees to be a member of a committee of the Company's
Board of Directors and, to the extent the person designated by
Liberty qualifies as a member of the Compensation Committee of the
Company's Board of Directors under applicable tax and securities laws
and regulations, the Company will seek to have such person appointed
to the Compensation Committee.
Pursuant to the terms of the Amended and Restated Governance
Agreement, the Company will cause each director that Vivendi Universal or
Liberty nominates, as the case may be, to be included in the slate of nominees
recommended by the Board of Directors to the Company's stockholders for
election as directors at each annual meeting of the stockholders of the
Company and will use all reasonable efforts to cause the election of each such
director including soliciting proxies in favor of the election of such
persons.
As long as Mr. Diller is Chief Executive Officer of the Company
("CEO") and has not become Disabled, he will have full authority to run the
Company's business on a day-to-day basis. "Disabled" when used in the Amended
and Restated Governance Agreement or the Amended and Restated Stockholders
Agreement means a disability that continues for 180 consecutive days and that
is determined by a designated physician to be total and permanent (i.e., a
mental or physical incapacity that prevents Mr. Diller from managing the
business affairs of the Company) and that continues for longer than 90 days
following the receipt of notice from the Company that a disability has
occurred.
D. Contingent Matters
The Company has agreed that neither the Company nor its affiliates
will take the following actions ("Contingent Matters") without the prior
approval of Liberty and Mr. Diller so long as (i) in the case of Liberty,
Liberty beneficially owns at least two-thirds of the number of equity
securities of the Company beneficially owned by it immediately after the
Closing and (ii) in the case of Mr. Diller, he beneficially owns at least 20
million shares of Common Stock (including options to purchase Common Stock,
whether or not then exercisable), the CEO Termination Date has not occurred
and Mr. Diller has not become Disabled);
(a) any transaction not in the ordinary course of business, launching
new or additional channels or engaging in any new field of
business which will result in or is reasonably likely to result in
such stockholder's being required under law to divest itself of
all or any part of its Company securities, or any material assets
or render any such ownership illegal or subject such stockholder
to any fines, penalties or material additional restrictions or
limitations, based only on the equity securities of the Company or
other material assets Liberty or Mr. Diller or any of their
respective affiliates hold as of the Closing;
(b) if the Company's Total Debt Ratio (as defined therein) ratio
equals or exceeds 4:1 over a twelve-month period,
(i) any combination of the following, in any case, in one
transaction or a series of transactions during a six-month
period, with a value of 10% or more of the market value of
the Company's outstanding equity securities at the time of
such transaction:
(A) acquiring or disposing (including pledges) of any
19
assets or business;
(B) granting or issuing any debt or equity securities
of the Company or any of its subsidiaries other
than as contemplated by, among other things, the
Liberty Exchange Agreement;
(C) redeeming, repurchasing or reacquiring any debt or
equity securities of the Company or any of its
subsidiaries other than as contemplated by, among
other things, the Liberty Exchange Agreement; or
(D) incurring any indebtedness.
(ii) voluntarily commencing any liquidation, dissolution or
winding up of the Company or any material subsidiary.
(iii) making any material amendments to the Certificate of
Incorporation or Bylaws of the Company;
(iv) engaging in any line of business other than media,
communications and entertainment products, services and
programming, and electronic retailing, or other businesses
engaged in by the Company as of the date of determination of
the Total Debt Ratio;
(v) adopting any stockholder rights plan (or any other plan or
arrangement that could reasonably be expected to
disadvantage any stockholder on the basis of the size or
voting power of its shareholding) that would adversely
affect Liberty or Mr. Diller;
(vi) entering into any agreement with any holder of the Company's
equity securities in such stockholder's capacity as such
which grants such stockholder with approval rights similar
in type and magnitude to the Contingent Matters provisions of
the Amended and Restated Governance Agreement.
E. Liberty's Preemptive Rights
Pursuant to the Amended and Restated Stockholders Agreement, in the
event that after the Closing, the Company issues or proposes to issue (other
than the Company and its affiliates or Liberty and its affiliates and other
than an excluded issuance) any shares of Common Stock or Class B Common Stock
(including shares issued upon exercise, conversion or exchange of options,
warrants and convertible securities but excluding shares of Common Stock
issued upon conversion of Class B Common Stock and exchange shares issued in
accordance with the Liberty Exchange Agreement), Liberty shall have certain
preemptive rights that entitle it to purchase or cause one of its affiliates
to purchase for cash a number of shares so that Liberty shall maintain the
identical percentage equity beneficial ownership in the Company interest that
Liberty owned immediately prior to such issuance or proposed issuance. Any
such purchase by Liberty will be allocated between Common Stock and Class B
Common Stock in the same proportion as the issuance or issuances giving rise
to the preemptive right, except to the extent that Liberty opts to acquire
shares of Common Stock in lieu of shares of Class B Common Stock.
20
F. Registration Rights
Vivendi Universal and its affiliates, Liberty and Mr. Diller shall
be entitled to customary registration rights with respect to shares of Common
Stock (and in the case of Vivendi Universal and its affiliates, the Equity
Warrants) owned by them as of the Closing or acquired from the Company in the
future (including the ability to transfer registration rights in connection
with the sale or other disposition of Common Stock). Vivendi Universal and its
affiliates, Liberty and Mr. Diller will be entitled to demand registration
rights but no more than four in the case of Vivendi Universal and its
affiliates, four in the case of Liberty, and three in the case of Mr. Diller.
The costs of such registration shall be paid by the Company. The Company will
not be required to register such shares if a stockholder would be permitted to
sell the shares in the quantities proposed to be sold at such time in one
transaction under Rule 144 of the Securities Act or under another comparable
exemption from registration.
IV. AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
A. General
On December 16, 2001, the Company, Vivendi Universal, Universal,
Liberty and Mr. Diller entered into an Amended and Restated Stockholders
Agreement (the "Amended and Restated Stockholders Agreement"), which will
become effective at the Closing and supersede the Stockholders Agreement among
Universal, Liberty, Mr. Diller, the Company and Seagram, dated as of October
19, 1997.
B. Corporate Governance
Each party has agreed to vote against any Contingent Matter if Mr.
Diller and Liberty do not approve such transaction. Universal, Liberty and Mr.
Diller have also agreed to vote all Company securities over which they have
voting control in favor of the respective designees of Universal and Liberty
to the Company's Board of Directors.
Each of Universal and Liberty has granted to Mr. Diller an
irrevocable proxy with respect to all Company securities owned by Universal
and Liberty for all matters, except, with respect to the proxy granted by
Liberty, for Contingent Matters to which Liberty has not consented. The proxy
will generally remain in effect until the earlier of the CEO Termination Date
or such date that Mr. Diller becomes Disabled, provided that Mr. Diller still
owns at least 20,000,000 shares of Common Stock (including options).
C. Restrictions on Transfers
Until the earlier of the CEO Termination Date or such date that Mr.
Diller becomes Disabled, subject to the other provisions of the Amended and
Restated Stockholders Agreement, neither Liberty nor Mr. Diller can transfer
shares of Common Stock or Class B Common Stock, other than (i) transfers by
Mr. Diller to pay taxes relating to certain Company incentive compensations
and stock options, (ii) transfers to each party's respective affiliates, (iii)
certain pledges relating to financings, and (iv) transfers of options or
Company's stock in connection with "cashless exercises" or Mr. Diller's
options. These restrictions are subject to a number of exceptions (which
exceptions are generally subject to the rights of first refusal as described
below):
(i) either stockholder may transfer shares of Common Stock or Class B
Common Stock to an unaffiliated third party or Universal
21
subject to tag-along rights described below;
(ii) either stockholder may transfer Common Stock or Class B Common
Stock so long as, in the case of Mr. Diller, he continues to
beneficially own at least 4,400,000 shares of Common Stock or Class B
Common Stock (including stock options) and, in the case of Liberty,
Liberty continues to beneficially own 4,000,000 shares of Company
securities, and in the case of a transfer of an interest in or shares
of Common Stock or Class B Common Stock held by the BDTV Entities,
after such transfer, Liberty and Mr. Diller collectively control
50.1% of the total voting power of Company; or
(iii) either stockholder may transfer Company stock so long as it
complies with the requirements of Rule 144 or Rule 145 and, in the
case of a transfer of an interest in or shares of Common Stock or
Class B Common Stock held by the BDTV Entities, after such transfer,
Liberty and Mr. Diller collectively control 50.1% of the total voting
power of the Company.
D. Tag-Along Rights and Rights of First Refusal
Mr. Diller and Liberty are entitled to a right to "tag-along" (i.e.,
participate on a pro rata basis) on sales of Common Stock or Class B Common
Stock by the other to any third party. Liberty's tag- along right will not be
triggered in case of (i) sales by Mr. Diller of an aggregate of not more than
4,000,000 shares of Common Stock or Class B Common Stock within any rolling
12-month period, (ii) transfers by Mr. Diller to pay taxes relating to certain
Company incentive compensation and stock options or transfers in connection
with "cashless exercises" or Mr. Diller's options, (iii) market sales or (iv)
generally when Mr. Diller is no longer CEO.
Mr. Diller has a right of first refusal with respect to sales by
Universal and its affiliates of Common Stock or Class B Common Stock. Such
right will not be triggered in case of (i) transfers between affiliates of
Vivendi Universal, (ii) market sales, in aggregate, of not more than 1,000,000
shares of Common Stock or Class B Common Stock within any rolling 12-month
period, and (iii) transfers of an aggregate of not more than 4,000,000 shares
of Common Stock or Class B Common Stock within any rolling 12-month period.
Liberty also has a substantially similar right of first refusal on the sales
of shares of Common Stock and Class B Common Stock by Vivendi Universal and
its affiliates, subject to Mr. Diller's right of first refusal.
Each of Mr. Diller and Liberty is entitled to a right of first
refusal in the case of a transfer by the other of Common Stock or Class B
Common Stock to a third-party unless, (i) such third-party is an affiliate of
the selling shareholder, (ii) not more than 4,000,000 shares of Common Stock
or Class B Common Stock on aggregate are transferred within any rolling
12-month period or (iii) not more than 1,000,000 shares of Common Stock or
Class B Common Stock are transferred within any rolling 12-month period
through market sales.
E. Transfers of Shares of Class B Common Stock
If a party to the Amended and Restated Stockholders Agreement
proposes to transfer shares of Class B Common Stock, the other parties are
entitled to swap any shares of Common Stock they own for such shares, Mr.
Diller having the priority over Liberty in case of transfers made by
Universal. To the extent there remain shares of Class B Common Stock that the
selling stockholder would otherwise transfer to a third
22
party, such shares must be converted into shares of Common Stock prior to the
transfer. This restriction does not apply to, among other transfers, to
transfers among the parties and their affiliates.
F. BDTV Entity Arrangements
Mr. Diller and Liberty will continue to have the same arrangements
with respect to the voting control and ownership of BDTV, BDTV II, BDTV III,
BDTV IV and any other BDTV entity that may be formed (collectively, the "BDTV
Entities").
G. Termination of Amended and Restated Stockholders Agreement
Universal's rights and obligations under the Amended and Restated
Stockholders Agreement generally terminate at such time as Universal no longer
beneficially owns at least 5% of the total equity securities of the Company.
Mr. Diller's and Liberty's rights under the Amended and Restated
Stockholders Agreement generally terminate at such time as, in the case of Mr.
Diller, he no longer beneficially owns at least 4,400,000 shares of Common
Stock or Class B Common Stock and, in the case of Liberty, 4,000,000 shares of
Common Stock or Class B Common Stock. Liberty's tag-along rights terminate at
such time as it and its affiliates cease to beneficially own at least 5% of
the outstanding shares of Common Stock and Class B Common Stock.
Mr. Diller's rights under the Amended and Restated Stockholders
Agreement generally terminate if the CEO Termination Date has occurred or if
Mr. Diller has become Disabled.
V. WARRANT AGREEMENT
In conjunction with the Proposed Transaction, the Company has agreed
to issue at the Closing to Universal the Equity Warrants and to enter into an
equity warrant agreement, substantially in the form of Exhibit B to the
Transaction Agreement, with The Bank of New York, as equity warrant agent.
Each Equity Warrant represents the right to purchase one share of Common
Stock, par value $.01 per share, of the Company (subject to adjustment to
protect against dilution). Each Equity Warrant will be exercisable commencing
six months from the date of issuance until its expiration date on the tenth
anniversary of its issuance. Holders of Equity Warrants will not be entitled,
by virtue of being such holders, to have any rights of holders of Common Stock
until they exercise their Equity Warrants.
The Equity Warrants will be issued in three tranches as follows:
Number of Equity Warrants Exercise Price Per Equity Warrant
------------------------- ---------------------------------
24,187,094 $27.50
24,187,094 $32.50
12,093,547 $37.50
23
The number of Equity Warrants will be reduced if the proposed
transaction between the Company and Expedia is not consummated. It is
contemplated that in the event of such an adjustment, there would be an
aggregate of 57,119,525 Equity Warrants, comprised of 22,847,810 Equity
Warrants with an exercise price of $27.50, 22,847,810 Equity Warrants with an
exercise price of $32.50, and 11,423,905 Equity Warrants with an exercise
price of $37.50.
Neither the Common Stock issuable upon exercise of the Equity
Warrants nor the Equity Warrants will be registered under the Securities Act
as of the Closing. Universal has certain enumerated demand registration
rights, which are outlined in the Amended and Restated Governance Agreement
and the Equity Warrants are transferable, except in accordance with the
limitations outlined in the Amended and Restated Governance Agreement and the
Amended and Restated Stockholders Agreement.
VI. PARTNERSHIP AGREEMENT
At the Closing, as provided in the Transaction Agreement, Universal,
the Company, USANi LLC and Mr. Diller will execute a Limited Liability Limited
Partnership Agreement (the "Partnership Agreement"), substantially in the form
attached thereto. The Partnership Agreement governs the formation and
management of the Partnership, the terms of the preferred and common interests
in the Partnership, distributions, the transfer of interests in the
Partnership and the dissolution and liquidation of the Partnership.
Common interests in the Partnership will be held by Universal
(through one or more wholly owned subsidiaries), the Company, USANi LLC and
Mr. Diller in participation percentages of 93.06%, 0.54%, 4.90% and 1.50%
respectively. The Company will also hold an additional equity interest
consisting of a class A preferred interest with $750,000,000 face value, which
will accrete at a rate of 5.0% per annum, and a class B preferred interest
with $1,750,000,000 face value, which will accrete at a rate of 1.4% per
annum. The Company will also receive cumulative preferred distributions in
respect of the class B preferred interests of the Partnership at a rate of
3.6% per annum. Further, at the Closing, the Company is expected to receive a
$1,618,710,396 cash distribution from the Partnership.
Pursuant to the terms of the Partnership Agreement beginning on the
twentieth anniversary of the Closing, Vivendi Universal and/or Universal will
have the right to purchase all (but not less than all) of the class B
preferred interests held by the Company and its affiliates, and the Company
and its affiliates will have the right to sell such interests to Universal in
return for the lesser of (i) 56,611,308 shares of Common Stock and Class B
Common Stock in the aggregate, and (ii) the number of shares of Common Stock
or Class B Common Stock with an aggregate market value equal to the then-face
value of the class B interests. Universal may, at its election, deliver cash
in lieu of shares of Common Stock (but not Class B Common Stock) otherwise
required pursuant to the terms of the class B preferred interests of the
Partnership.
In accordance with the terms of the Transaction Agreement and until
such time as the obligations with respect to the put and call options
described above have been satisfied, Universal and its affiliates will at all
times retain at least 43,181,308 shares of Common Stock and 13,430,000 shares
of Class B Common Stock, in each case free of any liens.
24
ITEM 7. Material to be Filed as Exhibits
The information contained in Item 7 of the Schedule 13D is hereby
amended and supplemented by adding the following information:
The following documents are filed as exhibits to this statement:
44. Transaction Agreement, dated as of December 16, 2001, by and
among Vivendi Universal, S.A., Universal Studios, Inc., the Company,
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., Light France
Acquisition 1, S.A.S., Universal Studios, Inc., the Company, additional
merger subsidiaries listed on the signature page thereto, Liberty Media
Corporation, Liberty Programming Company LLC, Liberty Programming
France, Inc., LMC USA VII, Inc., LMC USA VIII, Inc., LMC USA X, Inc.,
Liberty HSN LLC Holdings, Inc., and the Liberty Holding entities listed
in the signature pages thereto.
46. Amended and Restated Governance Agreement, dated as of
December 16, 2001, by and among the Company, 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. Form of Limited Liability Limited Partnership Agreement of
[Vivendi Universal Entertainment] L.L.L.P., among a wholly owned subsidiary of
Universal Studios, Inc., USA Networks, Inc., USANi LLC and Barry Diller.
49. Form of Equity Warrant Agreement between USA Networks, Inc.
and The Bank of New York.
25
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: December 20, 2001
LIBERTY MEDIA CORPORATION
By: /s/ Charles Y. Tanabe
--------------------------------
Name: Charles Y. Tanabe
Title: Senior Vice President
and General Counsel
BARRY DILLER
/s/ Barry Diller
-----------------------------------
UNIVERSAL STUDIOS, INC.
By: /s/ Howard Miller
--------------------------------
Name: Howard Miller
Title: Assistant Secretary
THE SEAGRAM COMPANY LTD.
By: /s/ John R. Preston
--------------------------------
Name: John R. Preston
Title: Senior Vice President
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
26
BDTV INC., BDTV II INC.,
BDTV III INC., BDTV IV INC.
By: /s/ Barry Diller
--------------------------------
Name: Barry Diller
Title: President
27
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./*/
28
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./*/
29
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., DDTV 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 the Company,
Mr. Diller, Universal and Liberty./*/
44. Transaction Agreement, dated as of December 16, 2001, by and
among Vivendi Universal, S.A., Universal Studios, Inc., the
Company, 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., Light
France Acquisition 1, S.A.S., Universal Studios, Inc., the
Company, additional merger subsidiaries listed on the signature
page thereto, Liberty Media Corporation, Liberty Programming
Company LLC, Liberty Programming France, Inc., LMC USA VII, Inc.,
LMC USA VIII, Inc., LMC USA X, Inc., Liberty HSN LLC Holdings,
Inc., and the Liberty Holding entities listed in the signature
page thereto.
46. Amended and Restated Governance Agreement, dated as of
December 16, 2001, by and among the Company, 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. Form of Limited Liability Limited Partnership Agreement of [Vivendi
Universal Entertainment] L.L.L.P., among a wholly owned subsidiary
of Universal Studios, Inc., USA Networks, Inc., USANi LLC and
Barry Diller.
49. Form of Equity Warrant Agreement between USA Networks, Inc. and
The Bank of New York.
/*/ Previously filed.
30
Schedule 3 of the Schedule 13D is hereby amended to read in its entirety as
follows:
SCHEDULE 3
DIRECTORS AND EXECUTIVE OFFICERS OF LIBERTY MEDIA CORPORATION
The name and present principal occupation of each director and
executive officer of Liberty Media Corporation are set forth below. Unless
otherwise noted, the business address for each person listed below is c/o
Liberty Media Corporation, 12300 Liberty Boulevard, Englewood, Colorado 80112.
All executive officers and directors listed on this Schedule 3 are United
States citizens, except for David J.A. Flowers, who is a Canadian citizen.
Name and Business Address Principal Occupation
-------------------------
John C. Malone Chairman of the Board and Director of
Liberty
Robert R. Bennett President, Chief Executive Officer and
Director of Liberty; Chairman of the
Board and Director of Liberty Digital,
Inc.
Donne Fisher Director of Liberty; President-Venture
Capital, Fisher Capital Partners Ltd.
Gary S. Howard Executive Vice President, Chief
Operating Officer and Director of
Liberty; Chairman of the Board and
Director of Liberty Satellite &
Technology, Inc.
Paul A. Gould Director of Liberty; Managing Director
Allen & Company Incorporated of Allen & Company Incorporated
711 5th Avenue, 8th Floor
New York, NY 10022
Jerome H. Kern Director of Liberty; Consultant, Kern
Kern Consulting LLC Consulting LLC
4600 S. Syracuse Street
Denver, CO 80237
Larry E. Romrell Director of Liberty
David J.A. Flowers Senior Vice President and Treasurer of
Liberty
Elizabeth M. Markowski Senior Vice President of Liberty
Charles Y. Tanabe Senior Vice President, General Counsel
and Secretary of Liberty
Peter N. Zolintakis Senior Vice President of Liberty
31
Christopher W. Shean Vice President and Controller of
Liberty
Schedule 4 of the Schedule 13D is hereby deleted in its entirety.
32
Schedule 5 of the Schedule 13D is hereby amended to read in its entirety as
follows:
SCHEDULE 5
DIRECTORS AND EXECUTIVE OFFICERS OF VIVENDI UNIVERSAL, S.A.
Set forth below is the name, business address, principal occupation
or employment and citizenship of each director and executive officer of
Vivendi Universal. Unless otherwise indicated, the business address of each
person listed below is 42, Avenue de Friedland, 75380 Paris Cedex 08, France.
Name and Business Principal Occupation
Address or Employment and Business Address Citizenship
------- ---------------------------------- -----------
Jean-Marie Messier Chairman and CEO of Vivendi France
Universal.
Eric Licoys Co-COO Vivendi Universal. France
Pierre Lescure Chairman and CEO of CANAL+, Chairman France
of the Executive Board of Groupe
CANAL+ and Co-COO of Vivendi
Universal.
Bernard Arnault Chairman and CEO of LVMH. France
30, avenue Hoche
75008 Paris, France
Jean-Louis Beffa Chairman and CEO of Compagnie de France
Sain-Gobain.
Les Miroirs
92096 Paris Cedex
27, France
Edgar Bronfman, Jr. Vice Chairman of the Board of United
Directors of Vivendi Universal. States
Richard H. Brown Chairman and CEO of Electronic Data United
Systems Corporation. States
5400 Legacy Drive
Plano, Texas 75024-3198
Jean-Marc Espalioux Chairman of the Executive Board of France
Accor.
Tour Maine Montparnasse
33, avenue du Maine
75755 Paris Cedex
15, France
Philippe Foriel- Chairman and CEO of Adecco France
Destezet 52, rue de la Bienfaisance
75008 Paris, France
Jacques Friedmann Retired Chairman of the Supervisory France
Board of AXA-UAP (Chairman from 1993-
2000).
80, avenue de Breteuil
75007 Paris, France
33
Guillaume Hannezo Senior Executive Vice President and France
CFO of Vivendi Universal
Esther Koplowitz Chairman and Member of the Board of Spain
Directors of Fomento de
Construcciones y Contratas
Torre Picasso
Plaza Pablo Ruiz Picasso
28020 Madrid, Spain
Mario-Josee Kravis Senior Fellow, Hudson Institute United
c/o 625 Park Avenue States
New York, NY 12021
Henri Lachmann Chairman and CEO of Schneider France
Electric Industries.
43-45, boulevard
F. Roosevelt, 92500
Rueil-Malmaison, France
Samuel Minzberg President and Chief Executive Officer Canada
of Claridge Inc.
1170 Peel Street
Montreal, Quebec H3B, 4P2
Simon Murray Chairman of Simon Murray & Company U.K.
Princes House-2nd Floor
38, Jermyn Street
London SW1Y 6DT
Serge Tchuruk Chairman and CEO of Alcatel France
54, rue de la Boetie
75008 Paris, France
Rene Thomas Honorary Chairman and Director of France
Banque Nationale de Paris-PARIBAS.
16, boulevard des Italiens
75009 Paris, France
Marc Vienot Honorary Chairman and Director of France
Societe Generale.
Tour Societe Generale
92972 Paris La Defense
Cedex, France