SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
USA INTERACTIVE
(Exact name of registrant as specified in its charter)
DELAWARE 59-2712887
(State of incorporation or (I.R.S. employer
organization) identification number)
152 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(Address of principal executive (Zip Code)
offices)
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of
securities pursuant to Section securities pursuant to Section
12(b) of the Exchange Act and 12(g) of the Exchange Act and
is effective pursuant to is effective pursuant to
General Instruction A.(c), General Instruction A.(d),
please check the following box. please check the following
|__| box. |X|
Securities Act registration statement file number to which this form relates:
_______________
(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class)
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The securities of USA Interactive, a Delaware corporation ("USA"), to be
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended, are shares of common stock, par value $0.01 per share, of USA (the "USA
common stock"). Set forth below is a description of shares of USA common stock.
The following statements are brief summaries of, and are subject to the
provisions of, USA's restated certificate of incorporation, as amended, USA's
amended and restated by-laws, and the relevant provisions of the Delaware
General Corporation Law (the "DGCL").
As of the date of this registration statement, USA's authorized capital
stock consists of 1,600,000,000 shares of USA common stock, 400,000,000 shares
of USA Class B common stock, par value $0.01 per share ("USA Class B common
stock"), and 100,000,000 shares of preferred stock, par value $0.01 per share,
of which 13,125,000 shares of preferred stock has been designated as Series A
Cumulative Convertible Preferred Stock ("USA preferred stock"). As of December
31, 2002, there were 385,725,610 shares of USA common stock outstanding
(including 468,169 shares of unvested restricted stock), 64,629,996 shares of
USA Class B common stock outstanding and 13,118,182 shares of USA preferred
stock outstanding.
USA COMMON STOCK AND USA CLASS B COMMON STOCK
With respect to matters that may be submitted to a vote or for the consent
of USA's stockholders generally, including the election of directors, each
holder of shares of USA common stock, USA Class B common stock and USA preferred
stock will vote together as a single class. In connection with any such vote,
each holder of USA common stock is entitled to one vote for each share of USA
common stock held, each holder of USA Class B common stock is entitled to ten
votes for each share of USA Class B common stock held and each holder of USA
preferred stock is entitled to two votes for each share of USA preferred stock
held. Notwithstanding the foregoing, the holders of shares of USA common stock,
acting as a single class, are entitled to elect 25% of the total number of USA's
directors, and, in the event that 25% of the total number of directors shall
result in a fraction of a director, then the holders of shares of USA common
stock, acting as a single class, are entitled to elect the next higher whole
number of USA's directors. In addition, the DGCL requires that certain matters
be approved by the holders of shares of USA common stock, holders of USA Class B
common stock or holders of USA preferred stock voting as a separate class.
Shares of USA Class B common stock are convertible into shares of USA
common stock at the option of the holder thereof, at any time, on a
share-for-share basis. Such conversion ratio will in all events be equitably
preserved in the event of any recapitalization of USA by means of a stock
dividend on, or a stock split or combination of, outstanding shares of USA
common stock or USA Class B common stock, or in the event of any merger,
consolidation or other reorganization of USA with another corporation. Upon the
conversion of shares of USA Class B common stock into shares of USA common
stock, those shares of USA Class B common stock will be retired and will not be
subject to reissue. Shares of USA common stock are not convertible into shares
of USA Class B common stock.
Except as described herein, shares of USA common stock and USA Class B
common stock are identical. The holders of shares of USA common stock and the
holders of shares of USA Class B common stock are entitled to receive, share for
share, such dividends as may be declared by USA's board of directors out of
funds legally available therefor. In the event of a liquidation, dissolution,
distribution of assets or winding-up of USA, the holders of shares of USA common
stock and the holders of shares of USA Class B common stock are entitled to
receive, share for share, all the assets of USA available for distribution to
its stockholders, after the rights of the holders of the USA preferred stock
have been satisfied.
Pursuant to an Amended and Restated Governance Agreement, dated December
16, 2001, among USA, Vivendi Universal, S.A., Universal Studios, Inc., Liberty
Media Corporation ("Liberty") and Barry Diller, Liberty has a preemptive right
to maintain its percentage equity interest in USA. This preemptive right
generally provides that Liberty may elect to purchase a number of shares of USA
common stock so that its percentage equity interest in USA immediately after a
transaction would be the same as immediately before the transaction. The
purchase price for shares of USA common stock pursuant to a preemptive right
election is generally based upon the fair market value (as defined in the
Amended and Restated Governance Agreement) of the USA common stock purchased.
USA's restated certificate of incorporation, as amended, provides that
there can be no stock dividends or stock splits or combinations of stock
declared or made on shares of USA common stock or USA Class B common stock
unless the USA common stock and USA Class B common stock then outstanding are
treated equally and identically.
USA PREFERRED STOCK
USA's board of directors has the authority to designate, by resolution, the
powers, preferences, rights and qualifications, limitations and restrictions of
the preferred stock without any further vote or action by the stockholders. Any
shares of preferred stock so issued would have priority over shares of USA
common stock and shares of USA Class B common stock with respect to dividend or
liquidation rights or both.
In connection with the acquisition of a controlling interest in Expedia,
Inc., USA issued an aggregate of approximately 13,125,000 shares of USA
preferred stock, par value $0.01 per share, "Series A Cumulative Convertible
Preferred Stock," each having a $50.00 face value and a term of 20 years. Each
share of USA preferred stock is convertible, at the option of the holder at any
time, into that number of shares of USA common stock equal to the quotient
obtained by dividing $50 by the conversion price per share of USA common stock.
The conversion price is initially equal to $33.75 per share of USA common stock
and is subject to downward adjustment if the price of USA common stock exceeds
$35.10 at the time of conversion pursuant to a formula set forth in the
certificate of designation for the USA preferred stock. Shares of USA preferred
stock may be put to USA on the fifth, seventh, tenth and fifteenth anniversary
of February 4, 2002 for cash or stock at USA's option. USA also has the right to
redeem the shares of USA preferred stock for cash or stock commencing on the
tenth anniversary of February 4, 2002. In the event of a voluntary or
involuntary liquidation, dissolution or winding-up of USA, holders of USA
preferred stock will be entitled to receive, in preference to any holder of USA
common stock or USA Class B common stock, an amount per share equal to all
accrued and
unpaid dividends plus the greater of (a) face value, or (b) the liquidating
distribution that would be received had such holder converted the USA preferred
stock into USA common stock immediately prior to the liquidation, dissolution or
winding-up of USA.
ANTI-TAKEOVER PROVISIONS IN USA'S BY-LAWS
USA's by-laws contain provisions that could delay or make more difficult
the acquisition of USA by means of a hostile tender offer, open market
purchases, a proxy contest or otherwise. In addition, USA's by-laws provide
that, subject to the rights of holders of preferred stock, only USA's chairman
of the board of directors or a majority of USA's board of directors may call a
special meeting of stockholders.
EFFECT OF DELAWARE ANTI-TAKEOVER STATUTE
USA is subject to Section 203 of the DGCL, which regulates corporate
acquisitions. Section 203 generally prevents corporations from engaging in a
business combination with any interested stockholder for three years following
the date that the stockholder became an interested stockholder, unless that
business combination has been approved in one of a number of specific ways. For
purposes of Section 203, a "business combination" includes, among other things,
a merger or consolidation involving USA and the interested stockholder and a
sale of more than 10% of its assets. In general, the anti-takeover law defines
an "interested stockholder" as any entity or person beneficially owning 15% or
more of a company's outstanding voting stock and any entity or person affiliated
with or controlling or controlled by that entity or person. A Delaware
corporation may "opt out" of Section 203 with an express provision in its
original certificate of incorporation or an express provision in its certificate
of incorporation or by-laws resulting from amendments approved by holders of at
least a majority of a corporation's outstanding voting shares. USA has not
"opted out" of the provisions of Section 203.
ACTION BY WRITTEN CONSENT
Under the DGCL, unless a company's certificate of incorporation expressly
prohibits action by the written consent of stockholders, any action required or
permitted to be taken by its stockholders at a duly called annual or special
meeting may be taken by a consent in writing executed by stockholders possessing
the requisite votes for the action to be taken. USA's certificate of
incorporation does not expressly prohibit action by the written consent of
stockholders. As a result, Mr. Diller, who as of the date of this registration
statement controlled (through companies owned by Liberty and Mr. Diller, his own
holdings and pursuant to an Amended and Restated Stockholders Agreement, dated
as of December 16, 2001, among Universal Studios, Inc., Liberty, Mr. Diller and
Vivendi Universal, S.A.) a majority of the outstanding total voting power of
USA, will be able to take any action to be taken by stockholders (other than
with respect to the election by the holders of shares of USA common stock of 25%
of the members of USA's board of directors and certain matters as to which a
separate class vote of the holders of shares of USA common stock, USA Class B
common stock or USA preferred stock is required) without the necessity of
holding a stockholders meeting. Upon Mr. Diller's permanent departure from USA,
Liberty generally would be able to control USA through its ownership of shares
of USA Class B common stock.
TRANSFER AGENT
The transfer agent for shares of USA common stock, USA Class B common stock
and USA preferred stock is The Bank of New York.
LISTING
Shares of USA common stock are listed on the Nasdaq National Market under
the ticker symbol "USAI." Shares of USA preferred stock are traded in the over
the counter market under the ticker symbol "USAIP.OB."
ITEM 2. EXHIBITS.
See Exhibit Index.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this Form 8-A Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
USA INTERACTIVE
By: /s/ Dara Khosrowshahi
---------------------------------------
Name: Dara Khosrowshahi
Title: Executive Vice President
and Chief Financial Officer
Dated: January 22, 2003
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
3.1 Restated Certificate of Incorporation of USA Interactive (incorporated
by reference to Exhibit 3.1 to USA Interactive's Quarterly Report on
Form 10-Q for the quarter ended June 30, 2000).
3.2 Amendment to the Restated Certificate of Incorporation of USA
Interactive (incorporated by reference to Exhibit A of USA
Interactive's Definitive Information Statement filed on November 19,
2001).
3.3 Certificate of Ownership and Merger Merging Taiwan Travel, Inc. into
USA Networks, Inc. (incorporated by reference to Exhibit 3.3 to USA
Interactive's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002).
3.4 Amended and Restated By-Laws of USA Interactive (incorporated by
reference to Exhibit 99.1 of USA Interactive's Current Report on Form
8-K, filed on September 20, 2002).
4.1 Certificate of Designations of Series A Cumulative Convertible
Preferred Stock of USA Interactive (incorporated by reference to
Exhibit 4.3 to USA Interactive's Annual Report on Form 10-K for the
year ended December 31, 2001).
10.1 Amended and Restated Governance Agreement, dated as of December 16,
2001, among Universal Studios, Inc., Liberty Media Corporation, Barry
Diller and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 10.1 to USA Interactive's Form 8-K filed on December 18,
2001).
10.2 Amended and Restated Stockholders Agreement, dated as of December 16,
2001, among Universal Studios, Inc., Liberty Media Corporation, Barry
Diller and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 99.2 to USA Interactive's Form 8-K filed on December 18,
2001).