<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
HSN, INC.
(formerly named Silver King Communications, Inc.)
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
40429R 10 9
(CUSIP Number)
<TABLE>
<S> <C>
Stephen M. Brett, Esq. Pamela S. Seymon, Esq.
Senior Vice President Wachtell, Lipton, Rosen & Katz
and General Counsel 51 West 52nd Street
Tele-Communications, Inc. New York, New York 10019
5619 DTC Parkway (212) 403-1000
Englewood, CO 80111
(303) 267-5500
</TABLE>
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 17, 1997
(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(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such class.
See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page should be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
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. 3 OF A REPORT ON SCHEDULE
13D OF BDTV II INC., AMENDMENT NO. 5 OF A REPORT ON SCHEDULE 13d OF
BDTV INC., AMENDMENT NO. 9 OF A REPORT ON SCHEDULE 13D OF EACH OF
BARRY DILLER AND THE REPORTING GROUP (AS DEFINED IN ITEM 2) AND
AMENDMENT NO. 11 OF A REPORT ON SCHEDULE 13D OF TELE-COMMUNICATIONS,
INC.
<PAGE>
CUSIP No. 40429R 10 9
(1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
Tele-Communications, Inc.
84-1260157
(2) Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
OO
(5) Check if Disclosure of Legal Proceedings is Required Pursu-
ant to Items 2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
Delaware
Number of (7) Sole Voting Power 0 shares
Shares
Beneficially (8) Shared Voting Power 23,854,105 shares
Owned by
Each (9) Sole Dispositive Power 0 shares
Reporting
Person (10) Shared Dispositive Power 23,854,105 shares
With
(11) Aggregate Amount Beneficially Owned by Each Reporting Per-
son
23,854,105 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares [X]
Includes Contingent Rights Shares and Liberty Exchange Shares
issuable to TCI upon satisfaction of certain conditions. See Item 6.
Excludes shares beneficially owned by the executive officers and
directors of TCI.
Excludes options to purchase an aggregate of 5,905,424 shares of
Common Stock granted to Mr. Diller, none of which are currently
vested or exercisable and none of which become exercisable within 60
days.
(13) Percent of Class Represented by Amount in Row (11)
33.25%
Assumes conversion of all shares of Class B Common Stock
beneficially owned by the Reporting Persons into shares
of Common Stock. Because each share of Class B Stock
generally is entitled to ten votes per share while the
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
72.8% of the voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
Page 2 of __ pages
<PAGE>
CUSIP No. 40429R 10 9
(1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
Barry Diller
(2) Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
OO
(5) Check if Disclosure of Legal Proceedings is Required Pursu-
ant to Items 2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
United States
Number of (7) Sole Voting Power 0 shares
Shares
Beneficially (8) Shared Voting Power 23,854,105 shares
Owned by
Each (9) Sole Dispositive Power 0 shares
Reporting
Person (10) Shared Dispositive Power 23,854,105 shares
With
(11) Aggregate Amount Beneficially Owned by Each Reporting Per-
son
23,854,105 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares [X]
Includes Contingent Rights Shares and Liberty Exchange Shares
issuable to TCI upon satisfaction of certain conditions. See Item 6.
Excludes shares beneficially owned by the executive officers and
directors of TCI. Excludes options to purchase an aggregate of
5,905,424 shares of Common Stock granted to Mr. Diller, none of which
are currently vested or exercisable and none of which become
exercisable within 60 days.
(13) Percent of Class Represented by Amount in Row (11)
33.25%
Assumes conversion of all shares of Class B Common Stock
beneficially owned by the Reporting Persons into shares of
Common Stock. Because each share of Class B Stock
generally is entitled to ten votes per share while the
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 72.8%
of the voting power of the Company.
(14) Type of Reporting Person (See Instructions)
IN
Page 3 of __ pages
<PAGE>
CUSIP No. 40429R 10 9
(1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
BDTV INC.
84-1260157
(2) Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
(5) Check if Disclosure of Legal Proceedings is Required Pur-
suant to Items 2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
Delaware
Number of (7) Sole Voting Power 0 shares
Shares
Beneficially (8) Shared Voting Power 23,854,105 shares
Owned by
Each (9) Sole Dispositive Power 0 shares
Reporting
Person (10) Shared Dispositive Power 23,854,105 shares
With
(11) Aggregate Amount Beneficially Owned by Each Reporting Per-
son
23,854,105 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares [X]
Includes Contingent Rights Shares and Liberty Exchange Shares
issuable to TCI upon satisfaction of certain conditions. See Item 6.
Excludes shares beneficially owned by the executive officers and
directors of TCI.
Excludes options to purchase an aggregate of 5,905,424 shares of
Common Stock granted to Mr. Diller, none of which are currently
vested or exercisable and none of which become exercisable within 60
days.
(13) Percent of Class Represented by Amount in Row (11)
33.25%
Assumes conversion of all shares of Class B Common Stock
beneficially owned by the Reporting Persons into shares of
Common Stock. Because each share of Class B Stock
generally is entitled to ten votes per share while the
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
72.8% of the voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
Pages 4 of __ pages
<PAGE>
CUSIP No. 40429R 10 9
(1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
BDTV II INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
OO
(5) Check if Disclosure of Legal Proceedings is Required Pur-
suant to Items 2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
United States
Number of (7) Sole Voting Power 0 shares
Shares
Beneficially (8) Shared Voting Power 23,854,105 shares
Owned by
Each (9) Sole Dispositive Power 0 shares
Reporting
Person (10) Shared Dispositive Power 23,854,105 shares
With
(11) Aggregate Amount Beneficially Owned by Each Reporting Per-
son
23,854,105 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares [X]
Includes Contingent Rights Shares and Liberty Exchange Shares
issuable to TCI upon satisfaction of certain conditions. See Item 6.
Excludes shares beneficially owned by the executive officers and
directors of TCI.
Excludes options to purchase an aggregate of 5,905,424 shares of
Common Stock granted to Mr. Diller, none of which are currently
vested or exercisable and none of which become exercisable within 60
days.
(13) Percent of Class Represented by Amount in Row (11)
33.25%
Assumes conversion of all shares of Class B Common Stock
beneficially owned by the Reporting Persons into shares of
Common Stock. Because each share of Class B Stock
generally is entitled to ten votes per share while the
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
72.8% of the voting power of the
Company.
(14) Type of Reporting Person (See Instructions)
CO
Pages 5 of __ pages
<PAGE>
CUSIP No. 40429R 10 9
(1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
BDTV III INC.
(2) Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
(3) SEC Use Only
(4) Source of Funds
OO
(5) Check if Disclosure of Legal Proceedings is Required Pur-
suant to Items 2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
United States
Number of (7) Sole Voting Power 0 shares
Shares
Beneficially (8) Shared Voting Power 23,854,105 shares
Owned by
Each (9) Sole Dispositive Power 0 shares
Reporting
Person (10) Shared Dispositive Power 23,854,105 shares
With
(11) Aggregate Amount Beneficially Owned by Each Reporting Per-
son
23,854,105 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares [X]
Includes Contingent Rights Shares and Liberty Exchange Shares
issuable to TCI upon satisfaction of certain conditions. See Item 6.
Excludes shares beneficially owned by the executive officers and
directors of TCI.
Excludes options to purchase an aggregate of 5,905,424 shares of
Common Stock granted to Mr. Diller, none of which are currently
vested or exercisable and none of which become exercisable within 60
days.
(13) Percent of Class Represented by Amount in Row (11)
33.25%
Assumes conversion of all shares of Class B Common Stock
beneficially owned by the Reporting Persons into shares of
Common Stock. Because each share of Class B Stock
generally is entitled to ten votes per share while the
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
72.8% of the voting power of the Company.
(14) Type of Reporting Person (See Instructions)
CO
Page 6 of __ pages
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Statement of
TELE-COMMUNICATIONS, INC.,
BARRY DILLER
BDTV INC.
BDTV II INC.
and
BDTV III INC.
Pursuant to Section 13(d)
of the Securities Exchange Act of 1934
in respect of
HSN, INC.
(formerly named Silver King Communications, Inc.)
This Report on Schedule 13D relates to the common stock, par value $.01 per
share (the "Common Stock"), of HSN, Inc., a Delaware corporation (the "Company,"
which was formerly named Silver King Communications, Inc.). The Report on
Schedule 13D originally filed by Tele-Communications, Inc., a Delaware
corporation ("TCI"), on August 15, 1994, as amended and supplemented by the
amendments thereto previously filed with the Commission (collectively, the "TCI
Schedule 13D"), is hereby amended and supplemented to include the information
contained herein, and this Report constitutes Amendment No. 11 to the TCI
Schedule 13D. In addition, the Report on Schedule 13D originally filed by each
of Mr. Barry Diller (the "Barry Diller Schedule 13D") and the Reporting Group
(the "Reporting Group Schedule 13D") on August 29, 1995, as amended and
supplemented by the amendments thereto previously filed with the Commission, is
hereby amended and supplemented to include the information contained herein, and
this Report constitutes Amendment No. 9 to each of the Barry Diller Schedule 13D
and the Reporting Group Schedule 13D. This Report on Schedule 13D also
constitutes Amendment No. 4 to the Report on Schedule 13D of BDTV INC., a
Delaware corporation ("BDTV"), originally filed with the Commission on August
16, 1996 (the "BDTV Schedule 13D"). This Report on Schedule 13D also constitutes
Amendment No. 3 to the Report on Schedule 13D of BDTV II INC., a Delaware
corporation ("BDTV II"), originally filed with the Commission on December 24,
1996 (the "BDTV II Schedule 13D"). This Report on Schedule 13D also constitutes
the Original Report (the "BDTV III Schedule 13D") of BDTV III INC., a Delaware
corporation ("BDTV III"). Barry Diller, TCI, BDTV, BDTV II and BDTV III (each, a
"Reporting Person") constitute a "group" for purposes of Rule 13d-5 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with respect
to their respective beneficial ownership of the Common Stock and are
collectively referred to as the "Reporting Group." The TCI Schedule 13D, the
Barry Diller Schedule 13D, the Reporting Group Schedule 13D, the BDTV Schedule
13D, the BDTV II Schedule 13D and the BDTV III Schedule 13D are collectively
referred to as the "Schedule 13D." Capitalized terms not defined herein
Page 7 of _ pages
<PAGE>
have the meanings provided in the prior Reports on Schedule 13D referred to in
this paragraph.
The summary descriptions contained in this Report of certain agreements and
documents are qualified in their entirety by reference to the complete texts of
such agreements and documents, filed as Exhibits hereto and incorporated herein
by reference. 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 the TCI Schedule 13D, the Barry
Diller Schedule 13D, the BDTV Schedule 13D, the BDTV II Schedule 13D and the
Reporting Group Schedule 13D is hereby amended and supplemented by adding the
following information (and such information also constitutes the BDTV III
Schedule 13D):
The business address of BDTV III INC. is 1940 Coldwater Canyon Drive,
Beverly Hills, CA 90210. BDTV III is a company formed by TCI and Mr. Diller to
hold Company securities.
The name, business address and present principal occupation or employment
and the name, address and principal business of any corporation or other
organization in which such employment is conducted of each of the executive
officers and directors of BDTV III are set forth in Schedule 1 attached hereto
and incorporated herein by reference.
During the last five years, neither BDTV III, nor, to the best of BDTV
III's knowledge, any of the persons named on Schedule 1, has (i) been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or (ii) been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is 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. To the best knowledge of
BDTV III, each of its executive officers and directors is a citizen of the
United States, except as specifically set forth in Schedule 1 hereto.
The name, business address and principal occupation or employment and the
name, address and principal business of any corporation or other organization in
which such employment is conducted of each of the executive officers and
directors of TCI are set forth in Schedule 2 attached hereto and incorporated
herein by reference. Such Schedule 2 shall supersede all prior schedules in
this Schedule 13D setting forth such information for TCI.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information contained in Item 6 of this Schedule 13D is hereby
incorporated by reference herein.
ITEM 4. PURPOSE OF THE TRANSACTION.
The information set forth in Item 6 of this Schedule 13D is hereby
incorporated by reference herein.
Page 8 of _ pages
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in Item 6 of this Schedule 13D, is hereby
incorporated by reference herein.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO THE SECURITIES OF THE ISSUER
The information set forth in Item 6 of the TCI Schedule 13D, the Barry
Diller Schedule 13D, the BDTV Schedule 13D, the BDTV II Schedule 13D and the
Reporting Group Schedule 13D is hereby amended and supplemented by adding the
following information (and such information also constitutes the BDTV III
Schedule 13D):
As previously reported, on July 17, 1997, the Company consummated the
transactions contemplated by the Stock Exchange Agreement and acquired
12,283,014 shares of Ticketmaster Common Stock from Paul G. Allen in exchange
for the issuance to Mr. Allen of 7,238,507 shares of Common Stock (the "Allen
Shares"). No members of the Tag-Along Group exercised the Tag-Along Rights
provided them under the Ticketmaster Stockholder Agreement prior to the closing
and, as a result, no shares were issued to the members of the Tag-Along Group.
However, the Company has agreed that in connection with the Stock Exchange
Agreement, it will extend the period during which Frederic D. Rosen may exercise
his Tag-Along Rights in respect of the 306,208 shares of Ticketmaster Common
Stock covered by the Shareholders Agreement, dated as of December 15, 1993, by
and among Mr. Allen, Mr. Rosen and certain other parties (the "Shareholders
Agreement"). Mr. Rosen may exercise, and the Company will honor, Mr. Rosen's
Tag-Along Rights under the Shareholders Agreement, provided that Mr. Rosen
notifies the Company of his decision to exercise his Tag-Along Rights no later
than January 6, 1998. Pursuant to the terms of the Stock Exchange Agreement, in
connection with the closing of the transactions contemplated by the Stock
Purchase Agreement, Mr. Allen, Mr. Rosen and William Savoy were appointed to the
Company's Board of Directors.
In accordance with the terms of the Diller-Liberty-Allen Stockholders
Agreement, each of Mr. Diller and TCI is obligated to vote all shares of voting
stock of the Company over which he or it may then exercise voting power, at any
annual or special meeting of stockholders of the Company called for the purpose
of the election of directors or to execute written consents of stockholders
without a meeting with respect to the election of directors, in favor of Mr.
Allen or a designee of Mr. Allen acceptable to the Company, so long as Mr. Allen
is entitled to representation on the Company's Board of Directors under the
Stock Exchange Agreement. The Diller-Liberty-Allen Stockholder Agreement will
terminate (as will Mr. Allen's right under the Stock Exchange Agreement to
representation on the Company's Board of Directors) upon the disposition by Mr.
Allen and his permitted transferees collectively, in one or more transactions,
to third parties of one-third or more of the shares of Common Stock acquired by
Mr. Allen under the Stock Exchange Agreement; provided, however, that the
-------- -------
Diller-Liberty-Allen Stockholder Agreement will terminate earlier (as will Mr.
Allen's right under the Stock Exchange Agreement to representation on the
Company's Board of Directors) if Mr. Allen and his permitted transferees do not
beneficially own at least 5% of the Company's outstanding equity securities
(assuming for this purpose that all Company equity securities issuable under the
Liberty Agreements (as defined in the Stock Exchange Agreement) are
outstanding).
As previously reported in the Schedule 13D, a number of the shares of Class
B Common Stock issuable to Liberty HSN pursuant to the Home Shopping Merger were
not issued, but instead are represented by the Contingent Rights which
contractually obligate the Company to issue to Liberty HSN the Contingent Rights
Shares upon the occurrence of certain events, including a change in applicable
FCC regulations or other event that would permit Liberty HSN to have an indirect
equity interest in the
Page 9 of _ pages
<PAGE>
Company greater than the indirect equity interest represented by the number of
shares of Common Stock which it then owns (directly and indirectly). Also, as
previously disclosed, in connection with the Home Shopping Merger the Company
and Liberty HSN entered into the Exchange Agreement. Pursuant to the Exchange
Agreement, at such time or from time to time following the issuance to it of all
Contingent Shares as Liberty HSN or its permitted transferee may be allowed
under applicable FCC authority to have an indirect equity interest in the
Company greater than the indirect equity interest represented by the number of
shares of Common Stock which it then owns (directly and indirectly), Liberty HSN
or its permitted transferee will exchange its shares of Home Shopping common
stock and its Home Shopping class B common stock for the Liberty Exchange
Shares.
As a consequence of the issuance of shares to Mr. Allen pursuant to the
Stock Exchange Agreement, under applicable FCC regulations and interpretations
(including the March Order), Liberty HSN was permitted to hold an indirect
equity interest in a greater number of shares of the Company than it held
immediately prior to the issuance of the Allen Shares. In accordance with the
terms of the Contingent Rights held by Liberty HSN, 2,002,591 Contingent Rights
Shares were issued to Liberty HSN immediately following the issuance of the
Allen Shares. The Contingent Rights Shares issued to Liberty HSN were
contributed to BDTV III, a newly formed entity in which Mr. Diller owns all of
the voting equity interests and TCI owns a non-voting equity interest (which
non-voting interest constitutes substantially all the equity of such entities)
and which (other than with respect to certain fundamental corporate actions) is
controlled by Mr. Diller, in accordance with the terms of the Stockholders
Agreement.
In addition, as previously reported, the Stock Exchange Agreement provides
that, depending upon the market price of the Common Stock, in July 1998 up to
3,257,328 additional shares of Common Stock may be required to be issued to Mr.
Allen. Accordingly, in the event additional shares of Common Stock become
issuable to Mr. Allen pursuant to the Stock Exchange Agreement in July 1998,
additional Contingent Rights Shares, or if the Contingent Rights have
theretofore been terminated through the prior issuance of all Contingent Rights
Shares, Liberty Exchange Shares will become issuable to Liberty HSN. Assuming
the maximum of 3,257,328 of such additional shares were issued to Mr. Allen and
that no additional Contingent Rights Shares are issued to Liberty HSN prior to
July 1998, the remaining 589,161 Contingent Rights Shares and 296,113 Liberty
Exchange Shares would be issued to Liberty HSN.
Page 10 of _ pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: July 28, 1997
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
------------------------------
Name: Stephen M. Brett
Title: Senior Vice President
and General Counsel
/s/ Barry Diller
---------------------------------
Barry Diller
BDTV INC.
By: /s/ Barry Diller
------------------------------
Name: Barry Diller
Title: President
BDTV II INC.
By: /s/ Barry Diller
------------------------------
Name: Barry Diller
Title: President
BDTV III INC.
By: /s/ Barry Diller
------------------------------
Name: Barry Diller
Title: President
Page 11 of pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Seq. Pg.
No.
<S> <C> <C>
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./*/
</TABLE>
_______________________
* Previously filed.
Page 12 of __ pages
<PAGE>
<TABLE>
<S> <C>
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, BDTC 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./*/
</TABLE>
_______________________
* Previously filed.
Page 13 of __ pages
<PAGE>
<TABLE>
<S> <C>
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.
</TABLE>
Page 14 of __ pages
<PAGE>
SCHEDULE 1
Directors, Executive Officers and Controlling Persons
of BDTV III INC. ("BDTV III")
<TABLE>
<CAPTION>
Principal Business or
Principal Occupation Organization in which
Name and Business Address such Business is Conducted
- ---- -------------------- ---------------------------
<S> <C> <C>
Barry Diller Chairman of the Board, Ownership and Operation of
Chief Executive Officer Television Stations; cable
and Director of HSN, television programming
Inc., 2425 Olympic
Boulevard, Santa Monica,
CA 90404; Chairman of the
Board, President and
Director of BDTV, BDTV II
and BDTV III
</TABLE>
Page 15 of ___ pages
<PAGE>
SCHEDULE 2
Directors, Executive Officers and Controlling Persons
of Tele-Communications, Inc. ("TCI")
<TABLE>
<CAPTION>
Principal Business or
Principal Occupation Organization in which
Name and Business Address such Business is Conducted
- ---- -------------------- --------------------------
<S> <C> <C>
John C. Malone Chairman of the Board and Cable television &
Chief Executive Officer & telecommunications; &
Director of TCI, programming services
5619 DTC Parkway,
Englewood, CO 80111
Leo J. Hindery, Jr. President and Chief Cable television &
Operating Officer & telecommunications; &
Director of TCI, programming services
5619 DTC Parkway,
Englewood, CO 80111
Donne F. Fisher Consultant & Director of Cable television &
TCI, 5619 DTC Parkway, telecommunications; &
Englewood, CO 80111 programming services
John W. Gallivan Director of TCI; Chairman Newspaper publishing
of the Board of Kearns-
Tribune Corporation,
400 Tribune Building,
Salt Lake City, UT 84111
Tony Coelho Director of TCI; Chairman Investment Services
of the Board & Chief
Executive Officer of ETC
w/TCI, Inc.; Chairman &
Chief Executive Officer of
Coelho Associates, L.L.P.,
1325 Avenue of the
Americas, 26th Floor,
New York, NY 10019
Kim Magness Director of TCI & TCI Management of personal
Communications, Inc., investments
Manages various
personal investments,
4000 E. Belleview,
Englewood, CO 80111
Paul A. Gould Director of TCI; Managing Securities firm
Director and Executive
Vice President of Allen &
Company, Incorporated,
711 Fifth Avenue,
New York, NY 10022
</TABLE>
Page 16 of __ pages
<PAGE>
<TABLE>
<CAPTION>
Principal Business or
Principal Occupation Organization in which
Name and Business Address such Business is Conducted
- ---- -------------------- --------------------------
<S> <C> <C>
Robert A. Naify Director of TCI; Motion Picture Industry
President and Chief
Executive Officer of
Todd-AO Corporation,
172 Golden Gate Avenue,
San Francisco, CA 94102
Jerome H. Kern Director of TCI; Business Business Consulting: Law
Consultant; Senior Counsel
to Baker & Botts, L.L.P.,
5619 DTC Parkway,
Englewood, CO 80111
J. C. Sparkman Director of TCI and Cable television &
Consultant, telecommunications; &
5619 DTC Parkway, programming services
Englewood, CO 80111
Gary K. Bracken Senior Vice President & Cable television &
Controller of TCI telecommunications; &
Communications, Inc., 5619 programming services
DTC Parkway, Englewood, CO
80111
Stephen M. Brett Executive Vice President, Cable television &
Secretary & General telecommunications; &
Counsel of TCI, 5619 DTC programming services
Parkway, Englewood, CO
80111
Brendan R. Clouston Executive Vice President Cable television &
of TCI, 5619 DTC Parkway, telecommunications; &
Englewood, CO 80111 programming services
Larry E. Romrell Executive Vice President Cable television &
of TCI, 5619 DTC Parkway, telecommunications; &
Englewood, CO 80111 programming services
Bernard W. Schotters, II Senior Vice President - Cable television &
Finance & Treasurer of telecommunications; &
TCI Communications, Inc., programming services
5619 DTC Parkway,
Englewood, CO 80111
Fred A. Vierra Executive Vice President Cable television &
of TCI; Chief Executive telecommunications; &
Officer and Director of programming services
Tele-Communications
International, Inc.,
5619 DTC Parkway,
Englewood, CO 80111
</TABLE>
Page 17 of __ pages
<PAGE>
<TABLE>
<CAPTION>
Principal Business or
Principal Occupation Organization in which
Name and Business Address such Business is Conducted
- ---- -------------------- --------------------------
<S> <C> <C>
Robert R. Bennett President and Chief Cable television &
Executive Officer of telecommunications; &
Liberty Media Corporation, programming services
5619 DTC Parkway,
Englewood, CO 60111
</TABLE>
Page 18 of __ pages
<PAGE>
Exhibit 30
THIRD AMENDED AND RESTATED JOINT FILING AGREEMENT
THIRD AMENDED AND RESTATED JOINT FILING AGREEMENT, dated as of July 17,
1997, by and between Tele-Communications, Inc., a Delaware corporation, Barry
Diller, BDTV INC., a Delaware corporation, BDTV II INC., a Delaware corporation,
and BDTV III INC., a Delaware corporation.
WHEREAS, each of the parties hereto beneficially owns shares of common
stock or options to purchase shares of common stock, or shares of Class B Common
Stock (collectively, the "Company Securities") of HSN, Inc., a Delaware
corporation;
WHEREAS, the parties hereto constitute a "group" with respect to the
beneficial ownership of the Company Securities for purposes of Rule 13d-1 and
Schedule 13D promulgated by the Securities and Exchange Commission; and
WHEREAS, Tele-Communications, Inc., Barry Diller, BDTV INC. and BDTV II
INC. have previously entered into an agreement, dated as of December 23, 1996,
pursuant to which the parties thereto agreed to prepare a single statement
containing the information required by Schedule 13D with respect to their
respective interests in the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. The parties hereto shall prepare a single statement containing
the information required by Schedule 13D with respect to their respective
interests in the Company Securities (the "Reporting Group Schedule 13D"), and
the Reporting Group Schedule 13D shall be filed on behalf of each of them.
2. Each party hereto shall be responsible for the timely filing of
the Reporting Group Schedule 13D and any necessary amendments thereto, and for
the completeness and accuracy of the information concerning him or it contained
therein, but shall not be responsible for the completeness and accuracy of the
information concerning any other party contained therein, except to the extent
that he or it knows or has reason to believe that such information is
inaccurate.
3. This Agreement shall continue unless terminated by any party
hereto.
4. Stephen M. Brett, Esq. and Pamela S. Seymon, Esq. shall be
designated as the persons authorized to receive notices and communications with
respect to the Reporting Group Schedule 13D and any amendments thereto.
5. This Agreement may be executed in counterparts, each of which
taken together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
--------------------------------------
Name: Stephen M. Brett
Title: Senior Vice President and General
Counsel
/s/ Barry Diller
-----------------------------------------
Barry Diller
BDTV INC.
By: /s/ Barry Diller
--------------------------------------
Name: Barry Diller
Title: President
BDTV II INC.
By: /s/ Barry Diller
--------------------------------------
Name: Barry Diller
Title: President
BDTV III INC.
By: /s/ Barry Diller
--------------------------------------
Name: Barry Diller
Title: President
-2-
<PAGE>
Exhibit 31
CERTIFICATE OF INCORPORATION
OF
BDTV III INC.
----------------
I, the undersigned, for the purposes of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, do
execute this Certificate of Incorporation and do hereby certify as follows:
ARTICLE I
NAME
The name of the Corporation is BDTV III INC.
ARTICLE II
REGISTERED OFFICE
The location of the registered office of the Corporation in the State
of Delaware is the office of The Prentice-Hall Corporation System, Inc., 1013
Centre Road, in the City of Wilmington, County of New Castle, State of Delaware
19805, and the name of the registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
<PAGE>
ARTICLE IV
SECTION A
AUTHORIZED STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue is one million one thousand two hundred ninety-
seven (1,001,297) shares, of which five hundred thousand six hundred forty-nine
(500,649) shares shall be Class A Common Stock, par value $.01 share (the "Class
A Common Stock"), and five hundred thousand six hundred forty-eight (500,648)
shares shall be Class B Common Stock, par value $.01 per share (the "Class B
Common Stock," and together with the Class A Common Stock, the "Common Stock").
SECTION B
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
Each share of Class A Common Stock and Class B Common Stock of the
Corporation shall, except as otherwise provided in this Certificate of
Incorporation, be identical in all respects and shall have equal rights and
privileges.
1. Voting Rights.
-------------
(a) The holders of the Class A Common Stock shall be entitled
to vote on all matters presented to a vote of the stockholders of the
Corporation, including elections of directors, at any annual or special meeting
of stockholders of the Corporation or in connection with the taking of any
action by the stockholders of the Corporation by written consent, with each such
holder entitled to one vote for each share of such stock held.
(b) Except as otherwise required by law or as provided in
paragraph 1(c) of this Section B below the holders of the Class B Common Stock
shall have no voting rights whatsoever.
(c) Notwithstanding anything else in this Certificate of
Incorporation to the contrary, so long as any shares of the Class B Common Stock
remain outstanding, the Corporation shall not take any action with respect to
any of the following matters without first obtaining the affirmative vote (or
written consent) of (i) from and after the initial issuance of shares of the
Class B Common Stock until such time as Liberty Media Corporation, a Delaware
corporation (including its successors by merger, consolidation, sale of assets
or otherwise, "Liberty"), ceases to hold any shares of the Class B Common Stock,
Liberty, and (ii) thereafter, until such time as the
2
<PAGE>
members of Liberty's Stockholder Group (as defined in that certain agreement,
dated as of August 24, 1995, as amended as of August 25, 1996, between Liberty
and Barry Diller (as so amended and including any successor agreement thereto as
contemplated by the terms thereof and any amendments thereto, the "Stockholders
Agreement")) cease to own any shares of the Class B Common Stock, the member of
Liberty's Stockholder Group so designated in writing by Liberty by notice to the
Corporation (Liberty or such designee, the "Designated Holder"):
(i) the issuance of any shares of capital stock of the
Corporation or any interests therein other than (x) pursuant to the Stockholders
Agreement, and (y) the issuance of shares of Class A Common Stock as a result of
the conversion of shares of Class B Common Stock pursuant to Section B(2) below;
(ii) any acquisition or disposition (including pledges),
directly or indirectly, by the Corporation of any equity securities (or any
interest therein) of HSN, Inc., a Delaware corporation ("HSNI", which term shall
include any successor by merger, consolidation, sale of assets or otherwise), or
any rights relating to the acquisition or disposition of such equity securities
(or any interest therein), except as specifically provided for by the
Stockholders Agreement;
(iii) other than as provided in clauses (i) and (ii) above,
the acquisition or disposition (including pledges), directly or indirectly, by
the Corporation of any assets (including debt and/or equity securities) or
business (by merger, consolidation or otherwise), the grant or issuance of any
debt or equity securities of the Corporation, the redemption, repurchase, or
reacquisition of any debt or equity securities of the Corporation by the
Corporation or any of its subsidiaries (other than the conversion of shares of
Class B Common Stock as provided in Section B(2)), or the incurrence of any
indebtedness by the Corporation;
(iv) any amendments to this Certificate of Incorporation
or the Bylaws of the Corporation;
(v) engaging in any business other than holding shares of
the capital stock of HSNI, exercising rights of ownership and voting related to
such shares of stock and pursuant to the Stockholders Agreement (subject in any
event to the provisions hereof and of the Stockholders Agreement), and engaging
in corporate governance and administrative activities consistent with the terms
of this Certificate of Incorporation, the Corporation's bylaws and the
Stockholders Agreement;
(vi) the settlement of any litigation, arbitration or
other proceeding which is other than in the ordinary course of business and
which involves any material restriction on the conduct of business by the
Corporation or the continued ownership (A) of its assets by the Corporation or
(B) of the capital stock of the Corporation by its stockholders;
3
<PAGE>
(vii) except as specifically contemplated by the
Stockholders Agreement and this Certificate of Incorporation, any transaction
between the Corporation and Barry Diller and his affiliates;
(viii) the merger, consolidation, dissolution or liquidation
of the Corporation; or
(ix) permitting HSNI to issue any shares of HSNI's Class B
Common Stock, par value $.01 per share, or any options, warrants or other rights
to acquire any shares of such Class B Common Stock of HSNI.
2. Conversion Rights.
-----------------
(a) Upon the first to occur of any of the following: (i) a
Change in Law (as defined below), (ii) the failure for any reason of Barry
Diller to be Chairman of the Board and/or Chief Executive Officer and/or
President of HSNI and to be a director of this Corporation, or (iii) the
satisfaction of all conditions (other than any conditions which are capable of
being satisfied only at the closing of such transaction) to the consummation of
any Agreement to Transfer (as defined below) (any such event set forth in
clauses (i), (ii) or (iii), a "Conversion Event"), each share of Class B Common
Stock shall become convertible, at the option of the holder thereof, into one
share of Class A Common Stock; provided, however, that with respect to a
-------- -------
Conversion Event pursuant to clause (iii) above, such shares of Class B Common
Stock shall only become convertible immediately prior to the consummation of the
transactions contemplated by such Agreement to Transfer. A "Change in Law" shall
be deemed to have occurred at such time as Liberty, a member of Liberty's
Stockholder Group or a permitted transferee of the foregoing under the
Stockholders Agreement (Liberty, such member of the Liberty Stockholder Group or
such permitted transferee, a "Qualified Holder") is entitled to exercise full
ownership and control over its pro rata interest in the shares of the capital
stock of HSNI held at such time by the Corporation, notwithstanding HSNI's
ownership of its broadcast licenses (or interests therein). An "Agreement to
Transfer" shall mean an agreement pursuant to which Liberty or a member of the
Liberty Stockholder Group proposes, subject to its obligations under the
Stockholders Agreement, to transfer, directly or indirectly (including by
merger, sale of assets or otherwise), such member's interest in the Corporation,
or all or part of such member's pro rata interest in shares of the capital stock
of HSNI held at such time by the Corporation, to any third party which is, or
upon receipt of any required governmental consent, approval or waiver, would be
entitled or otherwise permitted to own (in accordance with FCC Regulations (as
defined in the Stockholders Agreement)) such securities (including in connection
with a public offering of such HSNI capital stock effected pursuant to the
registration rights provided for in the Stockholders Agreement) (such third
party, a "Qualified Transferee").
(b) As promptly as practicable following notice to the
Corporation (i) by any Qualified Holder that, upon the receipt of any required
governmental or regulatory consents,
4
<PAGE>
approvals or waivers (provided that such Qualified Holder has determined in good
faith that any such waiver is obtainable) and the termination or expiration of
any applicable waiting period under the HSR Act, a Conversion Event shall have
occurred, or (ii) by Liberty, a member of the Liberty Stockholder Group or a
Qualified Transferee of the execution of an Agreement to Transfer, then the
Corporation shall, and shall cause each of its subsidiaries and affiliates
(including HSNI) to, (A) make any and all required applications or filings with
and seek any required consents, approvals or waivers from, any governmental or
regulatory agencies (including, but not limited to, with the Federal
Communications Commission (the "FCC") and under the Hart-Scott-Rodino Antitrust
Improvements of 1976, as amended (the "HSR Act")), (B) obtain any and all such
consents, approvals or waivers from such governmental or regulatory agencies,
and the expiration or termination of any applicable waiting period under the HSR
Act, in each case, which is reasonably necessary in connection with such
conversion or transfer (including a transfer pursuant to an Agreement to
Transfer) and (C) use reasonable efforts to cooperate with, and express its
support for, such Qualified Holder's or Qualified Transferee's efforts to obtain
any such consents, approvals and waivers or the expiration or termination of
such waiting period. Upon receipt of such consents, approvals or waivers or the
expiration or termination of such waiting period, as the case may be, the
Corporation shall notify such Qualified Holder or Qualified Transferee of such
receipt, expiration or termination. Such Qualified Holder or Qualified
Transferee shall use reasonable efforts to cooperate with the Corporation in
connection with the satisfaction by the Corporation of its obligations under
this paragraph (b).
(c) Any conversion provided for in paragraph (a) of this Section
B(2) above may be effected by any holder of Class B Common Stock by (i)
delivering written notice to the Corporation of such holder's intent to convert
shares of Class B Common Stock, which notice shall specify the number of shares
to be converted and the proposed date of such conversion, which shall be not
less than two business days after the delivery of such notice and (ii)
surrendering on the date specified in such notice (or such later date as all
required consents, approvals, waivers and terminations described in paragraph
(b) of this Section B(2) have been obtained) such holder's certificate or
certificates for the Class B Common Stock to be converted, duly endorsed, at the
office of the Corporation or any transfer agent for the Class B Common Stock,
together with a written notice to the Corporation at such office that such
holder elects to convert all or a specified number of shares of Class B Common
Stock represented by such certificate and stating the name or names in which
such holder desires the certificate or certificates for Class A Common Stock to
be issued. If so required by the Corporation, any certificate for shares
surrendered for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Corporation, duly executed by the holder of such shares
or the duly authorized representative of such holder. Promptly thereafter, the
Corporation shall issue and deliver to such holder or such holder's nominee or
nominees, a certificate or certificates for the number of shares of Class A
Common Stock to which such holder shall be entitled as herein provided. Such
conversion shall be deemed to have been made at the close of business on the
date of receipt by the Corporation or any such transfer agent of the certificate
or certificates, notice and, if required, instruments of transfer referred to
above, and the Person or
5
<PAGE>
Persons entitled to receive the Class A Common Stock issuable on such conversion
shall be treated for all purposes as the record holder or holders of such Class
A Common Stock at the close of business on that date. A number of shares of
Class A Common Stock equal to the number of shares of Class B Common Stock
outstanding from time to time shall at all times be set aside and reserved for
issuance upon conversion of shares of Class B Common Stock. Shares of Class B
Common Stock that have been converted hereunder shall be retired and shall not
be reissued by the Corporation. Shares of Class A Common Stock shall not be
convertible into shares of Class B Common Stock.
3. Dividends and Other Distributions. The Corporation shall be
---------------------------------
entitled to declare and pay, out of funds legally available therefor, dividends
and make distributions on the Class A Common Stock and Class B Common Stock only
as provided in this Section B(3). In connection with the declaration and
payment of any dividend or the making of any distribution on the Common Stock
(other than Liquidating Distributions (as defined below)), the holders of the
Class A Common Stock shall be entitled to receive, prior to the declaration or
payment of any dividend or other distribution to the holders of the Class B
Common Stock, an amount equal to $1.00 per share, payable solely in cash (the
"Class A Preferential Dividend"), and no more. Following the declaration and
payment of such amount to the holders of the Class A Common Stock, the
Corporation shall be entitled to pay such dividends and make such distributions
to the holders of the Class B Common Stock as the Corporation shall determine.
Other than the payment in cash of the Class A Preferential Dividend, the holders
of the Class A Common Stock shall have no other or further right to the payment
of any other dividend or distribution, other than Liquidating Distributions.
4. Reclassifications, Subdivisions and Combinations. The
------------------------------------------------
Corporation shall not reclassify, subdivide or combine one class of its Common
Stock without reclassifying, subdividing or combining the other class of Common
Stock, on an equal per share basis.
5. Liquidation and Mergers. In connection with any liquidation,
-----------------------
dissolution or winding up of the Corporation, the holders of any shares of Class
A Common Stock originally issued as shares of Class A Common Stock (and not upon
conversion of shares of Class B Common Stock) shall be entitled to receive an
amount in cash equal to the Class A Liquidation Price (as defined below) for
such shares of Class A Common Stock, and no other or further amount, and the
holders of shares of (i) Class B Common Stock and (ii) shares of Class A Common
Stock issued upon conversion of shares of Class B Common Stock shall thereafter
be entitled to share ratably, on a share for share basis, in any distribution of
the Corporation's remaining assets upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, after payment or
provisions for payment of the debts and other liabilities of the Corporation.
The "Class A Liquidation Price" of a share of Class A Common Stock which was
originally issued as Class A Common Stock and was not issued upon conversion of
a share of Class B Common Stock shall be an amount in cash equal to the price
paid (or the fair market value of property contributed) to the
6
<PAGE>
Corporation in respect of the initial issuance and sale thereof by the
Corporation, plus interest thereon at the Agreed Rate from the date of original
issuance thereof to and including the effective date of any liquidation or
dissolution of the Corporation, compounded annually. The "Agreed Rate" shall be
the rate of interest per annum equal to the commercial lending rate per annum
publicly announced from time to time by The Bank of New York as its prime rate
(such rate of interest to change as of the close of business on each date such
prime rate changes). The distributions to be made upon the shares of Class A
Common Stock and Class B Common Stock upon the liquidation, dissolution or
winding up of the Corporation are referred to as the "Liquidating Distribution."
Neither the consolidation or merger of the Corporation with or into any other
corporation or corporations nor the sale, transfer or lease of all or
substantially all of the assets of the Corporation shall itself be deemed to be
a liquidation, dissolution or winding up of the Corporation within the meaning
of this Section B(5).
ARTICLE V
INCORPORATOR
The incorporator of the Corporation is Elizabeth Crutcher, whose
mailing address is 599 Lexington Avenue, 29th floor, New York, New York 10022.
ARTICLE VI
DIRECTORS
The governing body of the Corporation shall be a Board of Directors.
The number of directors constituting the entire Board of Directors shall be one.
Election of directors need not be by written ballot. All directors of the
Corporation shall serve without compensation.
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
1. Elimination of Certain Liability of Directors. A director of the
---------------------------------------------
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the General Corporation Law of the State of Delaware, or (d) for
any transaction from which the director derived an improper personal benefit.
7
<PAGE>
2. Indemnification and Insurance.
-----------------------------
(a) Right to Indemnification. Each person who was or is made a
------------------------
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, amounts paid or to be paid in settlement, and
excise taxes or penalties arising under the Employee Retirement Income Security
Act of 1974) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrator; provided, however, that, except
-------- -------
as provided in paragraph 2(b), the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Designated Holder. The right to indemnification conferred in
this paragraph 2 shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the General
-------- -------
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, which undertaking shall itself be sufficient without the need for
further evaluation of the creditworthiness of the undertaking or of such
advancement, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this paragraph 2 or otherwise.
Notwithstanding the foregoing, no director or officer of the Corporation shall
be deemed to be serving at the request of the Corporation as a director,
officer, employee or agent of HSNI or any entity controlled by, controlling or
under common control (other than the Corporation) with HSNI (including employee
benefit plans) (collectively, "the HSNI Entities").
(b) Right of Claimant to Bring Suit. If a claim under paragraph
-------------------------------
2(a) is not paid in full by the Corporation within thirty days after a written
claim has been received by the
8
<PAGE>
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim, unless the failure to have been so paid is the result of
any action or failure to act on the part of such claimant. It shall be a defense
to any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the Corporation (including its Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
-------------------------
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this paragraph 2 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
---------
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
(e) Set-off of Indemnification Remedies; Subrogation. In the
------------------------------------------------
case of a claim for indemnification or advancement of expenses against the
Corporation under this paragraph 2 arising out of acts, events or circumstances
for which the claimant, who was at the relevant time serving as a director,
officer, employee or agent of any of the HSNI Entities, may be entitled to
indemnification or advancement of expenses pursuant to such HSNI Entity's
certificate of incorporation or by-laws, insurance policy or a contractual
agreement between the claimant and such entity (a "HSNI Indemnity Provision"),
the claimant seeking indemnification hereunder shall first seek indemnification
and advancement of expenses pursuant to any such HSNI Indemnity Provision. To
the extent that amounts to be indemnified or advanced to a claimant hereunder
are paid or advanced by or on behalf of a HSNI Entity, the claimant's right to
indemnification and advancement of expenses hereunder shall be reduced. In the
event of any payment of indemnification or
9
<PAGE>
advancement of expenses pursuant to this paragraph 2 by the Corporation, the
Corporation shall be subrogated to any such rights the applicable claimant may
have to indemnification from or on behalf of any of the HSNI Entities in
connection with the acts, events or circumstances giving rise to such claim.
ARTICLE VIII
TERM
The term of existence of this Corporation shall be perpetual.
ARTICLE IX
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be assessable. It
shall be issued as fully paid, and the private property of the stockholders
shall not be liable for the debts, obligations or liabilities of this
Corporation.
ARTICLE X
MEETINGS OF STOCKHOLDERS
Except as otherwise prescribed by law or by another provision of this
Certificate, special meetings of the stockholders of the Corporation, for any
purpose or purposes, shall be called by the Secretary of the Corporation (i)
upon the written request of the holders of not less than a majority of the total
voting power of the outstanding Common Stock, (ii) at any time following the
occurrence of a Conversion Event or following notice to the Corporation of the
execution of an Agreement to Transfer, upon the written request of the holders
of not less than a majority of the outstanding shares of Class B Common Stock,
(iii) at the request of at least a majority of the members of the Board of
Directors then in office or (iv) at the request of the Chairman of the Board, if
there be one. The holders of the Class B Common Stock shall be given notice of
and shall be entitled to attend all annual and special meetings of the
stockholders of the Corporation.
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ARTICLE XI
ACTION BY WRITTEN CONSENT OF STOCKHOLDERS;
ACTION BY THE BOARD OF DIRECTORS
Except as otherwise prescribed by law or by another provision of this
Certificate, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, if a consent
in writing, setting forth the action to be taken, shall be signed by the holder
or holders of shares having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote on the action were present and voted.
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IN WITNESS WHEREOF, the undersigned has signed this Certificate of
Incorporation this 16th day of July, 1997.
____________________________________
Elizabeth Crutcher
Incorporator
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