EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
4.1 Restated Certificate of Incorporation of InterActiveCorp
(incorporated by reference to Exhibit 3.1 to InterActiveCorp's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000).
4.2 Amendment to the Restated Certificate of Incorporation of
InterActiveCorp (incorporated by reference to Exhibit A of
InterActiveCorp's Definitive Information Statement filed on November
19, 2001).
4.3 Certificate of Ownership and Merger Merging Taiwan Travel, Inc. into
USA Networks, Inc. (incorporated by reference to InterActiveCorp's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2002).
4.4 Certificate of Ownership and Merger Merging WLS Holdings, Inc. into
USA Interactive and Amendment Thereto.
4.5 Amended and Restated By-Laws of InterActiveCorp (incorporated by
reference to Exhibit 99.1 of InterActiveCorp's Current Report on Form
8-K, filed on September 20, 2002).
4.6 Certificate of Designations of Series A Cumulative Convertible
Preferred Stock of InterActiveCorp (incorporated by reference to
Exhibit 4.3 to InterActiveCorp's Annual Report on Form 10-K for the
year ended December 31, 2001).
4.7 2000 Stock Option Plan (previously filed on February 7, 2000 as an
exhibit to Hotels.com's Registration Statement on Form S-1, Amendment
No. 3, and incorporated herein by reference, Registration No.
333-90601).
4.8 Directors' Stock Option Plan (previously filed on February 7, 2000 as
an exhibit to Hotels.com's Registration Statement on Form S-1,
Amendment No. 3, and incorporated herein by reference, Registration
No. 333-90601).
4.9 2003 Stock Option Plan.
5.1 Opinion of Wachtell, Lipton, Rosen & Katz as to the legality of the
shares to be issued.
23.1 Consent of Ernst & Young LLP, New York, New York.
23.2 Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1).
24.1 Powers of Attorney.*
* Previously filed on May 5, 2003.
Exhibit 4.4
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 03:21 PM 06/16/2003
FILED 03:08 PM 06/16/2003
SRV 030395906 - 2097382 FILE
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
WLS HOLDINGS, INC.
INTO
USA INTERACTIVE
(Pursuant to Section 253 of the
General Corporation Law of Delaware)
USA Interactive, a corporation organized and existing under the laws of
Delaware (the "Corporation"), does hereby certify:
FIRST: That the Corporation owns all of the outstanding
shares of the only class of stock of WLS Holdings, Inc., a
Delaware corporation ("Merger Sub").
SECOND: That the Corporation, by the following resolutions of its
Executive Committee of the Board of Directors of the Corporation (the
"Committee"), dated as of June 4, 2003 and unanimously adopted by the Committee,
determined to merge said Merger Sub into itself (the "Merger").
RESOLVED, that Merger Sub be merged into the Corporation and that,
upon the effectiveness of such merger, the Corporation shall assume all of
the liabilities and obligations of Merger Sub.
RESOLVED, that said merger shall become effective upon the filing of
a Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware or, if later, at such time as specified in the
Certificate of Ownership and Merger.
RESOLVED, that, upon effectiveness of said merger, Article I of the
Restated Certificate of Incorporation of the Corporation, as heretofore
amended, shall be amended to read as follows:
"ARTICLE I
The name of the corporation is InterActiveCorp"
RESOLVED, that the proper officers of the Corporation be, and they
hereby are, directed to make and execute a Certificate of Ownership and
Merger setting forth a copy of the resolutions to such merger and to
change the name of the Corporation, and the date of adoption thereof, and
to cause the same to be filed with the Secretary of the State of
Delaware and to do all acts and things whatsoever, whether within or
without the State of Delaware, that may be necessary or proper to effect
said merger and change of name.
THIRD: The merger shall be effective on June 20, 2003.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by a duly authorized officer on this 16th day of June, 2003.
USA Interactive
By: /S/ David Ellen
-------------------------------
Name: David Ellen
Title:Vice President, Acting General
Counsel and Secretary
-2-
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
DELIVERED 02:27 PM 06/19/2003
FILED 02:03 PM 06/19/2003
SRV 030406081 - 2097382 FILE
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
WLS HOLDINGS, INC.
INTO
USA INTERACTIVE
Pursuant to Section 103(d) of the Delaware General Corporation Law, USA
Interactive, a Delaware corporation, hereby certifies that:
FIRST: The Certificate of Ownership and Merger merging WLS Holdings,
Inc. into USA Interactive (the "Certificate of Merger") was filed with the
Secretary of State of the State of Delaware on June 16, 2003.
SECOND: The Certificate of Merger provided that the merger would
become effective on June 20, 2003.
THIRD: Article Third of the Certificate of Merger is hereby amended
to change the effective date as follows:
THIRD: The merger shall be effective on June
23, 2003 at 7:00 a.m.
IN WITNESS WHEREOF, this Certificate of Amendment has been duly executed
by a duly authorized officer this 19th day of June, 2003.
USA INTERACTIVE
By: /s/ David Ellen
---------------------------------------------
Name: David Ellen
Title: Vice President, Acting General
Counsel and Secretary
EXHIBIT 4.9
HOTELS.COM
2003 STOCK PLAN
1. PURPOSES OF THE PLAN. The purposes of this Hotels.com 2003 Stock Plan
are: to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentives to Service
Providers, and to promote the success of the Company's business. The Plan
permits the grant of Stock Options, Stock Purchase Rights, Stock Appreciation
Rights ("SARs"), Restricted Stock and Restricted Stock Units.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Administrator" means the Committee, the Board or their designee,
as provided in Section 4 of the Plan.
(b) "Affiliate" means a corporation or other entity (including, a
limited liability company or a partnership) controlled by, controlling or under
common control with the Company.
(c) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock are listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options, Restricted Stock, Restricted
Stock Units, Stock Purchase Rights or SARs are, or will be, granted under the
Plan.
(d) "Board" means the Board of Directors of the Company.
(e) "Cause" means termination of an Optionee's or Grantee's employment
by the Company for such reasons as may be defined as "Cause" in any applicable
employment agreement, or, if an Optionee or Grantee is not party to a valid
employment agreement at the time of his or her termination, shall mean (i) the
plea of guilty or nolo contendere to, or conviction for, the commission of a
felony offense by an Optionee or Grantee; (ii) a material breach by an Optionee
or a Grantee of a fiduciary duty owed to the Company or any of its subsidiaries;
(iii) a willful breach by an Optionee or Grantee of any non-disclosure,
non-solicitation or non-competition obligation owed to the Company or any of its
subsidiaries; (iv) the willful or gross neglect by an Optionee or Grantee of his
or her employment duties; and (v) such other event as shall be set forth in the
agreement evidencing the Optionee's or Grantee's award under this Plan or as
shall be provided by the Administrator. The Administrator shall have sole
discretion to determine whether "Cause" exists, and its determination shall be
final.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the applicable regulations promulgated thereunder.
(g) "Committee" means a committee of Directors appointed by the Board
in accordance with Section 4 of the Plan.
(h) "Common Stock" means the Class A Common Stock, $0.01 of the
Company.
(i) "Company" means Hotels.com, a Delaware corporation, and any
successor entity thereto.
(j) "Consultant" means any person, including an advisor, engaged by
the Company or any Parent, Subsidiary or other Affiliate to render services to
such entity.
(k) "Director" means a member of the Board.
(l) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(m) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary or other Affiliate of the
Company. A Service Provider shall not cease to be an Employee in the case of (i)
any leave of absence approved by a senior officer of the Company or a majority
of the members of the Board, or (ii) transfers between locations of the Company
or between the Company, any Parent, Subsidiary or other Affiliate or any
successor to such entities. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute "employment" by
the Company.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the applicable rules and regulations promulgated
thereunder.
(o) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
If the Common Stock is listed on any established stock exchange or a
national market system, including, without limitation, the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system for the last market
trading day prior to the day of determination, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
If the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, the Fair Market Value of a Share of
Common Stock shall be the mean between the high bid and low asked prices for the
Common Stock on the last market trading day prior to the day of determination,
as reported in The Wall Street Journal or such other source as the Administrator
deems reliable; or
In the absence of an established market for the Common Stock, the
Fair Market Value shall be determined in good faith by the Administrator and
computed in accordance with applicable regulations of the Internal Revenue
Service.
(p) "Grantee" means the holder of Stock Options, SARs, Restricted
Stock, Restricted Stock Units, or a Stock Purchase Right granted under the Plan.
(q) "Immediate Family" means the Optionee and the Optionee's spouse,
parents, children or grandchildren (including adopted children, step-children
and step-grandchildren.
(r) "Incentive Stock Option" means any Stock Option designated as, and
qualified as, an "incentive stock option" within the meaning of Section 422 of
the Code.
(s) "Non-Employee Director" means a Director who is not an Employee.
(t) "Nonqualified Stock Option" means an Option not intended to meet
the requirements of Section 422 of the Code and the regulations promulgated
thereunder.
(u) "Notice of Grant" means a written or electronic notice evidencing
certain terms and conditions of an individual Option or Stock Purchase Right
grant. The Notice of Grant is part of the Option Agreement and the Restricted
Stock Purchase Agreement.
(v) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(w) "Option" or "Stock Option" means a stock option granted pursuant
to the Plan.
(x) "Option Agreement" means an agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. The
Option Agreement is subject to the terms and conditions of the Plan.
(y) "Optioned Stock" means the Common Stock subject to an Option or
Stock Purchase Right.
(z) "Optionee" means the holder of an outstanding Option or Stock
Purchase Right granted under the Plan.
(aa) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(bb) "Performance Goals" means the performance goals established by
the Committee in connection with the grant of Restricted Stock, Restricted Stock
Units, and any Options, SARs and Stock Purchase Rights with an exercise price
per Share that is less than the Fair Market Vale of a Share on the date of the
grant. In the case of Qualified Performance-Based Awards, (i) such goals shall
be based on the attainment of specified levels of one or more of the following
measures: revenues, EBITDA, EBITA, EBITDA margin, EBITD margin, earnings per
share, adjusted earnings per share, sales, net profit after tax, gross profit,
operating profit, cash generation, unit volume, return on equity, change in
working capital, return on capital, shareholder return, market share or any
other objective performance measure established by the Committee, and (ii) such
Performance Goals shall be set by the Committee within the time period
prescribed by Section 162(m) of the Code and related regulations.
(cc) "Plan" means this Hotels.com 2003 Stock Plan, as amended from
time to time.
(dd) "Qualified Performance-Based Award" means an award of Restricted
Stock and Restricted Stock Units, and any Options, SARs and Stock Purchase
Rights with an exercise price per Share that is NOT less than the Fair Market
Value of a Share on the date of grant, and designated as such by the Committee
at the time of grant, based upon a determination that (i) the Grantee is or may
be a "covered employee" within the meaning of Section 162(m)(3) of the Code in
the year in which the Company would expect to be able to claim a tax deduction
with respect to such Restricted Stock and (ii) the Committee wishes such award
to qualify for the Section 162(m) Exemption.
(ee) "Restricted Stock" means an award granted under Section 10 of the
Plan.
(ff) "Restricted Stock Units" means an award granted under Section 10
of the Plan.
(gg) "Restricted Stock Purchase Agreement" means a written agreement
between the Company and the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase Right. The Restricted Stock
Purchase Agreement is subject to the terms and conditions of the Plan and the
Notice of Grant.
(hh) "Restricted Stock Agreement" means a written agreement between
the Company and the Grantee evidencing the terms and conditions of an individual
Restricted Stock grant. The Restricted Stock Agreement is subject to the terms
of the Plan.
(ii) "Restricted Stock Unit Agreement" means a written agreement
between the Company and the Grantee evidencing the terms and conditions of an
individual Restricted Stock Unit grant. The Restricted Stock Unit Agreement is
subject to the terms of the Plan.
(jj) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(kk) "SAR Agreement" means a written agreement between the Company and
the Grantee evidencing the terms and conditions of an individual SAR grant. The
SAR Agreement is subject to the terms of the Plan.
(ll) "Section 16(b)" means Section 16(b) of the Exchange Act.
(mm) "Section 162(m) Exemption" means the exemption from the
limitation on deductibility imposed by Section 162(m) of the Code that is set
forth in Section 162(m)(4)(C) of the Code.
(nn) "Service Provider" means an Employee, Non-Employee Director or
Consultant.
(oo) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
(pp) "Stock Appreciation Right" or "SAR" means a right granted under
Section 11 of the Plan.
(qq) "Stock Purchase Right" means the right to purchase Common Stock
pursuant to Section 9 of the Plan, as evidenced by a Notice of Grant.
(rr) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 13 of
the Plan, the maximum aggregate number of Shares which may be issued under the
Plan is 1,000,000 Shares. The Shares may be authorized, but unissued, or
reacquired Common Stock.
If any grant of Restricted Stock or Restricted Stock Units is
forfeited, or if any Option, Stock Purchase Right or SAR terminates, expires or
lapses without being exercised in full, the forfeited or unpurchased Shares
which were subject thereto shall become available for future grant or sale under
the Plan (unless the Plan has terminated); provided, however, that Shares that
have actually been issued under the Plan, whether upon exercise of an Option,
Stock Purchase Right or SAR or upon lapsing of restrictions on Restricted Stock
or Restricted Stock Units, shall not be returned to the Plan and shall not
become available for future distribution under the Plan, except that if Shares
of Restricted Stock or Restricted Stock Units are repurchased by the Company at
their original purchase price, such Shares shall become available for future
grant under the Plan. If the exercise price of any Option, SAR or Stock Purchase
Right granted under the Plan is satisfied by delivering Shares to the Company
(by either actual delivery or by attestation), only the number of Shares issued
net of the Shares delivered or attested to shall be deemed issued for purposes
of determining the maximum numbers of Shares available for issuance under the
Plan. To the extent any Shares subject to an Option, Stock Purchase Right, SAR,
Restricted Stock or Restricted Stock Units are not delivered to a participant
because such Shares are used to satisfy an applicable tax-withholding
obligation, such Shares shall not be deemed to have been issued for purposes of
determining the maximum number of Shares available for issuance under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE - IN GENERAL. The Plan shall be administered by (i) the
Committee, which shall be comprised of not less than two directors appointed by
the Board, each of whom is intended to be a "non-employee director" (within the
meaning of Rule 16b-3) and an "outside director" (within the meaning of Code
Section 162(m) and the Treasury Regulations promulgated thereunder) to the
extent that Rule 16b-3 and Code Section 162(m), respectively, are applicable to
the Company and to Options, Stock Purchase Rights, Restricted Stock, Restricted
Stock Units, and SARs granted under the Plan; or (ii) the Board. If the
Committee is acting as Administrator, any action permitted to be taken by the
Committee under the Plan may be taken by the Board in its discretion (and in
such cases, the Board will be treated as the Administrator).
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan, the Administrator shall have the authority, in its discretion:
(i) to grant Options, Restricted Stock, Restricted Stock Units,
Stock Purchase Rights and SARs pursuant to the terms of the Plan to Service
Providers;
(ii) to determine the Fair Market Value;
(iii) to select the Service Providers to whom Options, Restricted
Stock, Restricted Stock Units, Stock Purchase Rights and SARs may be granted
hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each Option, Restricted Stock award, Restricted Stock Unit award,
Stock Purchase Right and SAR granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions (which need not be the
same with respect to each Grantee), not inconsistent with the terms of the Plan,
of any Option, Restricted Stock award, Restricted Stock Unit award, SAR or Stock
Purchase Right granted hereunder. Such terms and conditions include, but are not
limited to, the exercise price, the time or times when Options, SARs or Stock
Purchase Rights may be exercised (which may be based on performance criteria),
any vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option, grant of Restricted Stock, grant
of Restricted Stock Units, any SAR or Stock Purchase Right, or the shares of
Common Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vii) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan and interpret, administer, reconcile any
inconsistency, correct any default and/or supply any omission in the Plan and
any instrument or agreement relating to any Option, Restricted Stock award,
Restricted Stock Unit award, Stock Purchase Right or SAR granted under the Plan;
provided, however, that the Committee may not adjust upwards the amount payable
with respect to a Qualified Performance-Based Award or alter the Performance
Goals associated therewith;
(viii) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(ix) to modify or amend each Option, Restricted Stock grant,
Restricted Stock Unit grant, Stock Purchase Right or SAR (subject to Section
15 (c) of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is otherwise
provided for in the Plan;
(x) to allow Optionees and Grantees to satisfy withholding tax
obligations by electing to have the Company withhold from the Shares to be
issued upon exercise of an Option, SAR or Stock Purchase Right or lapsing of
restrictions on Restricted Stock or Restricted Stock Units that number of Shares
having a Fair Market Value equal to the amount required to be withheld. The Fair
Market Value of the Shares to be withheld shall be determined on the date that
the amount of tax to be withheld is to be determined. All elections by an
Optionee or a Grantee to have Shares withheld for this purpose shall be made in
such form and under such conditions as the Administrator may deem necessary or
advisable;
(xi) to authorize any person to execute on behalf of the Company
any instrument required to effect the grant of an Option, Restricted Stock,
Restricted Stock Units, Stock Purchase Right or SAR previously granted by the
Administrator; and
(xii) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. The Administrator's decisions,
determinations and interpretations shall be final, binding and conclusive on all
Optionees and Grantees, and all other persons having an interest herein. No
member of the Committee shall be liable for any action or determination made in
good faith with respect to the Plan or any award hereunder.
The Administrator may act only by a majority of its members then in
office, except that the Administrator may, except to the extent prohibited by
applicable law or the applicable rules of a stock exchange, allocate all or any
portion of its responsibilities and powers to any one or more of its members and
may delegate all or any part of its responsibilities and powers to any person or
persons selected by it; provided that no such delegation may be made that would
cause awards or other transactions under the Plan to cease to be exempt from
Section 16(b) of the Exchange Act or cause an award designated as a Qualified
Performance-Based award not to qualify for, or to cease to qualify for, the
Section 162(m) Exemption. Any such allocation or delegation may be revoked by
the Administrator at any time.
5. ELIGIBILITY. Nonqualified Stock Options, Restricted Stock,
Restricted Stock Units, Stock Purchase Rights and SARs may be granted to all
Service Providers. Incentive Stock Options may be granted only to Employees.
Except as may specifically be provided by the Administrator from
time to time, in order to receive a grant of Options, Restricted Stock,
Restricted Stock Units, SARs, or Stock Purchase Rights under the Plan, a Service
Provider must agree not to (a) solicit employees of the Company or its
Subsidiaries or Affiliates, (b) subject to applicable laws, compete with the
Company or its Subsidiaries or Affiliates and (c) reveal confidential
information of the Company or its Subsidiaries or Affiliates. The terms,
conditions, and provisions relating to these non-solicitation, non-competition
and confidentiality provisions shall be determined by the Administrator.
6. LIMITATIONS.
(a) The following limitations shall apply to grants of Options,
SARs and Qualified Performance-Based Awards:
(i) No Service Provider shall be granted more than
2,000,0000 Options and SARs, or more than 2,000,000 Qualified Performance-Based
Awards during any calendar year.
(ii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization as
described in Section 13.
(iii) If an Option is canceled in the same fiscal year of
the Company in which it was granted (other than in connection with a transaction
described in Section 13), the canceled Option will be counted against the limits
set forth in subsections (i) and (ii) above. For this purpose, if the exercise
price of an Option is reduced, the transaction will be treated as a cancellation
of the Option and the grant of a new Option.
7. TERM OF PLAN. Subject to Section 19 of the Plan, the Plan shall
become effective upon its adoption by the Board. It shall continue in effect for
a term of ten (10) years unless terminated earlier under Section 15 of the Plan.
8. STOCK OPTIONS. Stock Options may be granted alone or in addition to
other awards granted under the Plan and may be of two types: Incentive Stock
Options and Nonqualified Stock Options. Any Stock Option granted under the Plan
shall be in such form as the Administrator may from time to time approve.
The Administrator shall have the authority to grant any participant
Incentive Stock Options, Nonqualified Stock Options or both types of Stock
Options (in each case with or without Stock Appreciation
Rights); provided, however, that grants hereunder are subject to the aggregate
limit on grants to individual participants set forth in Section 6(a). Incentive
Stock Options may be granted only to Employees of the Company and its
Subsidiaries and Parent. To the extent that any Stock Option is not designated
as an Incentive Stock Option or even if so designated does not qualify as an
Incentive Stock Option, it shall constitute a Nonqualified Stock Option.
Stock Options shall be evidenced by Option Agreements, the terms and
provisions of which may differ. An Option Agreement shall indicate on its face
whether it is intended to be an agreement for an Incentive Stock Option or a
Nonqualified Stock Option.
Stock Options granted under the Plan shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions as the Administrator shall deem desirable:
(a) TERM OF OPTION. The term of each Option shall be stated in
the Option Agreement, but no Incentive Stock Option shall be exercisable more
than 10 years after the date the Incentive Stock Option is granted.
(b) OPTION EXERCISE PRICE AND CONSIDERATION.
(1) Exercise Price. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be determined by the
Administrator and shall be no less than 100% of the Fair Market Value per Share
on the date of grant. Notwithstanding the foregoing, Options may be granted with
a per Share exercise price of less than 100% of the Fair Market Value per Share
on the date of grant pursuant to a merger or other corporate transaction.
(2) Waiting Period and Exercise Dates. At the time an Option
is granted, the Administrator shall fix the period within which the Option may
be exercised and shall determine any conditions which must be satisfied before
the Option may be exercised.
(3) Form of Consideration. The Administrator shall determine
the acceptable form of consideration for exercising an Option, including the
method of payment. The Administrator shall determine the acceptable form of
consideration at the time of grant or the agreement. Such consideration may
consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other than as provided in subsection (v), and to
the extent permitted by Applicable Laws, other Shares (by delivery or
attestation) which (A) in the case of Shares acquired upon exercise of an
option, have been owned by the Optionee for more than six months on the date of
delivery (or attestation) or which were acquired in the open market, (B) have a
Fair Market Value on the date of delivery (or attestation) equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised, and (C) in the case of an Incentive Stock Option the right to make a
payment in the form of previously owned shares may be authorized only at the
time the Incentive Stock Option is awarded;
(v) to the extent permitted by Applicable Laws,
consideration received by the Company under the cashless exercise program that
is implemented by the Company from time to time in connection with the Plan;
(vi) any combination of the foregoing methods of
payment; or
(vii) such other consideration and method of payment
for the issuance of Shares to the extent permitted by Applicable Laws.
No Shares shall be issued until full payment therefor has been
made.
(c) EXERCISE OF OPTION.
(1) Procedure for Exercise; Rights as a Stockholder. Any
Option granted hereunder shall be exercisable according to the terms of the Plan
and at such times and under such conditions as determined by the Administrator
and set forth in the Option Agreement. Unless the Administrator provides or
foreign law requires otherwise, vesting of Options granted hereunder shall be
tolled during any unpaid leave of absence. An Option may not be exercised for a
fraction of a Share.
An Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except as
provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the number
of Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised, except
as otherwise provided in Section 3 of the Plan.
(2) Termination of Relationship as a Service Provider. If an
Optionee ceases to be a Service Provider, other than upon the Optionee's death
or Disability, the Optionee may exercise his or her Option within such period of
time as is specified in the Option Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement). In the absence of
a specified time in the Option Agreement, the Option shall remain exercisable
for three months following the Optionee's termination (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement), unless such termination is for Cause, in which case the Option will
immediately terminate and expire. If, on the date of termination, the Optionee
is not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.
(3) Disability of Optionee. If an Optionee ceases to be a Service
Provider as a result of the Optionee's Disability, the Optionee may exercise his
or her Option, but only to the extent that the Option would have otherwise
vested had the Optionee remained a Service Provider for a period of twelve (12)
months after the date on which the Service Provider ceased to be a Service
Provider as a result of the Disability. Such exercise must occur within eighteen
(18) months (or such shorter time as is specified in the Option Agreement) from
the date on which the Service Provider ceased to be a Service Provider as a
result of the Disability (but in no event later than the date of expiration of
the term of such Option as set forth in the Option Agreement). If, after
termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan. If an Incentive Stock Option is exercised after
the expiration of the exercise periods that apply for purposes of Section 422 of
the Code, such Option will thereafter be treated as a Nonqualified Stock Option.
(4) Death of Optionee. In the event of the death of an Optionee:
(i) who is at the time of death a Service Provider, the
Option may be exercised, at any time within twelve (12) months following the
date of death (but in no event later than the date of expiration of the term of
such Option as set forth in the Option Agreement), by the Optionee's estate or
by a person who acquired the right to exercise the option by bequest or
inheritance, but only to the extent that the Option would have otherwise vested
had the Optionee continued living and continued to be a Service Provider twelve
(12) months after the date of death; or
(ii) who is at the time of death not a Service Provider but
whose Option has not yet expired, the Option may be exercised, at any time
within twelve (12) months following the date of death (but in no event later
than the date of expiration of the term of such Option as set forth in the
Option Agreement), by the Optionee's estate or by a person who acquired the
right to exercise the Option by bequest or inheritance, but only to the extent
that the Option would have otherwise vested at the date of termination.
If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(5) Buyout Provisions. The Administrator may at any time offer to
buy out for a payment in cash or Shares an Option previously granted based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
9. STOCK PURCHASE RIGHTS.
(a) RIGHTS TO PURCHASE. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing or electronically, by means of a Notice of Grant, of the
terms, conditions and restrictions related to the offer, including the number of
Shares that the offeree shall be entitled to purchase, the price to be paid, and
the time within which the offeree must accept such offer. The offer shall be
accepted by execution of a Restricted Stock Purchase Agreement in the form
determined by the Administrator.
(b) REPURCHASE OPTION. Unless the Administrator determines otherwise,
the Restricted Stock Purchase Agreement shall grant the Company a repurchase
option exercisable upon the Grantee voluntary or involuntary ceasing to be a
Service Provider for any reason (including death or Disability). The purchase
price for Shares repurchased pursuant to the Restricted Stock Purchase Agreement
shall be the original price paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The repurchase
option shall lapse at a rate determined by the Administrator.
(c) OTHER PROVISIONS. The Restricted Stock Purchase Agreement shall
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.
(d) RIGHTS AS A STOCKHOLDER. Once the Stock Purchase Right is
exercised, the purchaser shall have the rights equivalent to those of a
stockholder, and shall be a stockholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the Stock Purchase Right is exercised, except as provided in Section 13
of the Plan.
10. RESTRICTED STOCK AND RESTRICTED STOCK UNITS.
(a) ADMINISTRATION. Shares of Restricted Stock and/or Restricted Stock
Units may be awarded either alone or in addition to other awards granted under
the Plan. The Administrator shall determine the Service Providers to whom and
the time or times at which grants of Restricted Stock and/or Restricted Stock
Units
will be awarded, the number of Shares to be awarded to any Service Providers,
the conditions for vesting, the time or times within which such awards may be
subject to forfeiture and any other terms and conditions of the awards, in
addition to those contained in Section 10(c). Restricted Stock Units shall be
similar to Restricted Stock except that no Shares are actually awarded on the
date of grant. Instead, at the discretion of the Administrator, Restricted Stock
Units shall be settled in Shares or cash, if and when the Restricted Stock Units
vest, upon the expiration of the Restriction Period and/or the date the
applicable Performance Goals are satisfied, if any.
(b) AWARDS AND CERTIFICATEs. Shares of Restricted Stock and/or shares
underlying Restricted Stock Units shall be evidenced in such manner as the
Administrator may deem appropriate, including book-entry registration or
issuance of one or more stock certificates. Any certificate issued in respect of
shares of Restricted Stock or shares underlying Restricted Stock Units shall be
registered in the name of such participant and shall bear an appropriate legend
referring to the terms, conditions, and restrictions applicable to such award,
substantially in the following form:
"The transferability of this certificate and the shares of Common
Stock represented hereby are subject to the terms and conditions
(including forfeiture) of the hotels.com 2003 Stock Plan and a
Restricted Stock Agreement and/or a Restricted Stock Unit Agreement.
Copies of such Plan and Agreement are on file at the offices of
Hotels.com, 8140 Walnut Hill Lane, Suite 800, Dallas, TX 75231."
The Administrator may require that the certificates evidencing such Shares be
held in custody by the Company until the restrictions thereon shall have lapsed
and that, as a condition of any award of Restricted Stock and/or Restricted
Stock Units, the participant shall have delivered a stock power, endorsed in
blank, relating to the Common Stock covered by such award.
(c) TERMS AND CONDITIONS. Awards of Restricted Stock and/or Restricted
Stock Units shall be subject to the following terms and conditions:
(i) The Administrator may, prior to or at the time of grant,
designate an award of Restricted Stock and/or Restricted Stock Units as a
Qualified Performance-Based Award, in which event the Administrator shall
condition the grant or vesting, as applicable, of such Restricted Stock and/or
Restricted Stock Units upon the attainment of Performance Goals. If the
Administrator does not designate an award of Restricted Stock and/or Restricted
Stock Units as a Qualified Performance-Based Award, it may also condition the
grant or vesting thereof upon the attainment of Performance Goals. Regardless of
whether an award of Restricted Stock and/or Restricted Stock Units is a
Qualified Performance-Based Award, the Administrator may also condition the
grant or vesting thereof upon the continued service of the Grantee. The
conditions for grant or vesting and the other provisions of Restricted Stock
and/or Restricted Stock Unit grants (including without limitation any applicable
Performance Goals) need not be the same with respect to each Grantee. The
Administrator may at any time, in its sole discretion, accelerate or waive, in
whole or in part, any of the foregoing restrictions; provided, however, that in
the case of Restricted Stock and/or Restricted Stock Units that is a Qualified
Performance-Based Award, the applicable Performance Goals have been satisfied.
(ii) Subject to the provisions of the Plan and the Restricted
Stock Agreement and/or the Restricted Stock Unit Agreement referred to in
Section 10(c)(vi), during the period, if any, set by the Administrator,
commencing with the date of such award for which such Grantee's continued
service is required (the "Restriction Period"), and until the later of (i) the
expiration of the Restriction Period and (ii) the date the applicable
Performance Goals (if any) are satisfied, the Grantee shall not be permitted to
sell, assign, transfer, pledge or otherwise encumber shares of Restricted Stock
or shares underlying Restricted Stock Units.
(iii) Except as provided in this paragraph (iii) and Sections
10(c)(i) and 10(c)(ii) and the Restricted Stock Agreement and/or the Restricted
Stock Unit Agreement, the Grantee shall have, with respect to the shares of
Restricted Stock and upon receiving shares underlying the Restricted Stock
Units, all of the rights of a stockholder of the Company holding the class or
series of Common Stock that is the subject of the Restricted Stock and/or
Restricted Stock Units, including, if applicable, the right to vote the shares
and the right to receive any cash
dividends to the extent permitted by Applicable Laws. If so determined by the
Administrator in the applicable Restricted Stock Agreement, and to the extent
permitted by Applicable Laws, (A) cash or other dividends on the class or series
of Common Stock that is the subject of the Restricted Stock Award shall be
automatically deferred and reinvested in additional Restricted Stock, held
subject to the vesting of the underlying Restricted Stock, or held subject to
meeting Performance Goals applicable only to dividends or dividends payable in
shares of an Affiliate upon a spin-off transaction, shall be held as restricted
shares subject to the vesting of the underlying Restricted Stock, and (B)
dividends payable in Common Stock shall be paid in the form of Restricted Stock
of the same class as the Common Stock with which such dividend was paid, held
subject to the vesting of the underlying Restricted Stock, or held subject to
meeting Performance Goals applicable only to dividends; provided that
reinvestment of dividends in additional Restricted Stock at the time of any
divided payment shall only be permissible if sufficient shares of Common Stock
are available under Section 3 for such reinvestment.
(iv) Except to the extent otherwise provided in the applicable
Restricted Stock Agreement and/or Restricted Stock Unit Agreement or Section
10(c)(i), 10(c)(ii), 10(c)(v) or upon a Grantee ceasing to be a Service Provider
for any reason during the Restriction Period or before the applicable
Performance Goals are satisfied, all shares still subject to restriction shall
be forfeited by the Grantee; provided, however, that the Administrator shall
have the discretion to waive, in whole or in part, any or all remaining
restrictions (other than, in the case of Restricted Stock and/or Restricted
Stock Units with respect to which a Grantee is a "Covered Employee" within the
meaning of Section 162(m) of the Code, satisfaction of the applicable
Performance Goals unless the Grantee's employment is terminated by reason of
death or Disability or involuntarily without Cause or by the Service Provider
for "good reason" (as defined in the Service Provider's employment agreement,
if any) with respect to any or all of such Grantee's Shares of Restricted Stock
and/or Restricted Stock Units.
(v) If and when the Restriction Period expires without a prior
forfeiture of the Restricted Stock (and any applicable Performance Goals are
satisfied), unlegended certificates for such Shares shall be delivered to the
participant upon surrender of the legended certificates.
(vi) Each award shall be confirmed by, and be subject to, the
terms of a Restricted Stock Agreement and/or a Restricted Stock Unit Agreement.
11. STOCK APPRECIATION RIGHTS.
(a) GRANT OF SARS. Subject to the terms and conditions of the Plan,
freestanding SARs may be granted to Service Providers at any time and from time
to time as shall be determined by the Administrator.
Subject to the terms and conditions of the Plan, the Administrator
shall have complete discretion in determining the number of SARs granted to each
Service Provider and, consistent with the provisions of the Plan, in determining
the terms and conditions pertaining to such SARs.
The grant price of a freestanding SAR shall be no less than the Fair
Market Value of a Share on the date of grant of the SAR.
(b) SAR AGREEMENT. Each SAR award shall be evidenced by a SAR
Agreement that shall specify the grant price, the term of the SAR, and such
other provisions as the Administrator shall determine.
(c) TERM OF SARS. The term of an SAR granted under the Plan shall be
determined by the Administrator, in its sole discretion, and except as
determined otherwise by the Administrator and specified in the SAR Award
Agreement, no SAR shall be exercisable later than the tenth (10th) anniversary
date of its grant. Notwithstanding the foregoing, for SARs granted to Service
Providers outside the United States, the Administrator has the authority to
grant SARs that have a term greater than ten years.
(d) EXERCISE OF FREESTANDING SARS. Freestanding SARs may be exercised
upon whatever terms and conditions the Administrator, in its sole discretion,
imposes upon them.
(e) PAYMENT OF SAR AMOUNT. Upon the exercise of an SAR, a Service
Provider shall be entitled to receive payment from the Company in an amount
determined by multiplying:
(i) The difference between the Fair Market Value of a Share on
the date of exercise over the grant price; by
(ii) The number of Shares with respect to which the SAR is
exercised.
At the discretion of the Administrator, the payment upon SAR
exercise may be in cash, in Shares of equivalent value, in some combination
thereof, or in any other manner approved by the Board at its sole discretion.
The Administrator's determination regarding the form of SAR payout shall be set
forth in the SAR Agreement pertaining to the grant of the SAR.
(f) TERMINATION OF EMPLOYMENT/DIRECTORSHIP. Each SAR Agreement shall
set forth the extent to which the Grantee shall have the right to exercise the
SAR following termination of the Grantee's employment, directorship or service
with the Company, its Affiliates, and/or its Subsidiaries, as the case may be.
Such provisions shall be determined in the sole discretion of the Administrator,
shall be included in the SAR Agreement entered into with Grantees, need not be
uniform among all SARs issued pursuant to the Plan, and may reflect distinctions
based on the reasons for termination.
12. NON-TRANSFERABILITY OF OPTIONS, RESTRICTED STOCK, RESTRICTED STOCK
UNITS, SARS AND STOCK PURCHASE RIGHTS. Unless determined otherwise by the
Administrator, an Option, a grant of Restricted Stock, a grant of Restricted
Stock Units, a SAR, or a Stock Purchase Right may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee or Grantee, only by the Optionee or Grantee, as
applicable. However, to the extent permitted by Applicable Laws and the
applicable award agreement, a Nonqualified Option, a grant of Restricted Stock,
a grant of Restricted Stock Units, a SAR or a Stock Purchase Right is
transferable, in whole or in part, by gift or, with the consent of the
Administrator, for value, to Immediate Family of the Optionee or Grantee,
partnerships of which the only partners are members of the Optionee's or
Grantee's Immediate Family, and trusts established solely for the benefit of the
Optionee's or Grantee's Immediate Family, provided such transferability shall be
limited to vested rights. Transfers to the Optionee's or Grantee's immediate
family are subject to the terms and conditions of this Plan and the terms and
conditions of any relevant agreement pursuant to which they were granted and
shall not be permitted to effect a cashless exercise. The Optionee's or
Grantee's Immediate Family do not have the right to further transfer those
rights other than by will or the laws of descent and distribution. In addition,
to the extent permitted by Applicable Laws, a Nonqualified Option, a grant of
Restricted Stock, a grant of Restricted Stock Units, a SAR or a Stock Purchase
Right shall also be transferable by the Optionee or Grantee, in whole or in
part, with the consent of the Administrator, to charitable organizations,
provided such transferability shall be limited to vested rights. Transfers to
charitable organizations shall also be subject to the terms and conditions of
this Plan and the terms and conditions of any relevant agreement pursuant to
which they were granted, and charitable organizations shall not be permitted to
effect a cashless exercise. In addition, such charitable organizations shall not
have the right to further transfer those rights. If the Administrator makes an
award transferable, such award shall contain such additional terms and
conditions as the Administrator deems appropriate.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
stockholders of the Company, the number of shares of Restricted Stock, the
number of Shares underlying Restricted Stock Units, the number of Shares covered
by each outstanding Option, SAR and Stock Purchase Right, the number or kind of
Shares which have been authorized for issuance under the Plan but as to which no
Options, Shares of Restricted Stock, Shares underlying Restricted Stock Units,
SARs or Stock Purchase Rights have yet been granted or which have been returned
to the Plan upon cancellation, expiration or forfeiture of an Option, shares of
Restricted Stock, Shares underlying Restricted Stock Units, SARs or Stock
Purchase Right, as well as the price per Share covered by each such outstanding
Option, SAR or Stock Purchase Right shall be proportionately adjusted for any
increase or decrease in the number or kind of issued shares of Common Stock
resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any
other increase or decrease in the number of issued Shares effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration"; provided further, that the number
of shares of Restricted Stock, the number of Shares underlying Restricted Stock
Units or Shares subject to an Option, SAR or Stock Purchase Right shall always
be a whole number. Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option, Shares of
Restricted Stock, and Shares underlying Restricted Stock Units, SARs or Stock
Purchase Rights.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee and/or Grantee as soon as practicable prior to the effective date of
such proposed transaction. The Administrator in its discretion may provide for
an Optionee and/or a Grantee to have the right to exercise his or her Option or
SAR until ten (10) days prior to such transaction as to all of the Optioned
Stock or Shares covered thereby, including Shares as to which the Option or SAR
would not otherwise be exercisable. In addition, the Administrator may provide
that any Company repurchase option (as described in Section 9(b) of the Plan)
applicable to any Shares purchased upon exercise of a Stock Purchase Right shall
lapse as to all such Shares and that all restrictions with respect to any
Restricted Stock and/or Restricted Stock Units shall lapse as to all such
Restricted Stock and/or Restricted Stock Units, provided that the proposed
dissolution or liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously exercised, an Option, SAR
or a Stock Purchase Right will terminate immediately prior to the consummation
of such proposed action.
(c) MERGER OR ASSET SALE. In the event of a merger of the Company with
or into another corporation, or the sale of substantially all of the assets of
the Company, all outstanding Options, shares of Restricted Stock, Restricted
Stock Units, SARs or Stock Purchase Rights shall be assumed or an equivalent
option, share of restricted stock, restricted stock unit or right shall be
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. The number of Shares reserved pursuant to Section 3 may
be increased by the corresponding number of Options assumed in connection with
such a transaction and, in the case of a substitution, by the net increase in
the number of Shares subject to Options before and after the substitution. In
the event that the successor corporation refuses to assume or substitute for the
Option, Restricted Stock, Restricted Stock Units, SARs or Stock Purchase Right,
the Optionee or Grantee shall fully vest in and have the right to exercise the
Option or Stock Purchase Right as to all of the Optioned Stock, including Shares
as to which it would not otherwise be vested or exercisable, and all
restrictions on Restricted Stock shall lapse, as the case may be. If an Option,
SAR or Stock Purchase Right becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee or Grantee in writing or electronically
that the Option, SAR or Stock Purchase Right shall be fully vested and
exercisable for a period of fifteen (15) days from the date of such notice, and
the Option, SAR or Stock Purchase Right shall terminate upon the expiration of
such period. For the purposes of this paragraph, the Option, Stock Purchase
Right, SAR, Restricted Stock Unit or Restricted Stock shall be considered
assumed if, following the merger or sale of assets, the option, right or share
of restricted stock confers the right to purchase or receive, for each Share of
Optioned Stock or Share subject to the Option, SAR or Stock Purchase Right,
Share granted as Restricted Stock, Share granted under a SAR or Restricted Stock
Unit immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of Common Stock for each Share held on the effective
date of the transaction (and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the merger or
sale of assets is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Option,
SAR or Stock Purchase Right for each Share of Optioned Stock or Share subject to
the Option, SAR or Stock Purchase Right or upon the lapse of the restrictions
with respect to the Restricted Stock or Restricted Stock Units, respectively, to
be solely common stock of the successor corporation or its Parent equal in fair
market value to the per share consideration received by holders of Common Stock
in the merger or sale of assets.
14. DATE OF GRANT. The date of grant of an Option, a share of Restricted
Stock, Restricted Stock Unit, a SAR or a Stock Purchase Right shall be, for all
purposes, the date on which the Administrator makes the determination granting
such Option, Restricted Stock, Restricted Stock Unit, SAR or Stock Purchase
Right or such other later date as is determined by the Administrator. Notice of
the determination shall be provided to each Optionee or Grantee within a
reasonable time after the date of such grant.
15. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time amend, alter,
suspend or terminate the Plan, provided that no such amendment, alteration,
suspension, discontinuation or termination shall be made without shareholder
approval if such approval is necessary to comply with any tax or regulatory
requirement applicable to the Plan (including as necessary to prevent Options,
Stock Purchase Rights, Restricted Stock, Restricted Stock Units and SARs granted
under the Plan from failing to qualify as "performance-based compensation" for
purposes of Section 162(m) of the Code and to prevent Options intended to be
Incentive Stock Options from failing to qualify as such under Section 422 of the
Code); and provided further that any such amendment, alteration, suspension,
discontinuance or termination that would impair the rights of any Optionee or
Grantee shall not to that extent be effective without the consent of the
affected Optionee, Grantee, holder or beneficiary.
(b) STOCKHOLDER APPROVAL. The Company shall obtain stockholder
approval of any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws.
(c) SERVICE PROVIDERS IN FOREIGN COUNTRIES. Notwithstanding any
provision of the Plan to the contrary, in order to comply with the laws in other
countries in which the Company, its Affiliates, and its Subsidiaries operate or
have Service Providers, the Administrator, in its sole discretion, shall have
the power and authority to:
(i) Determine which Affiliates and Subsidiaries shall be covered
by the Plan;
(ii) Determine which Service Providers outside the United States
are eligible to participate in the Plan;
(iii) Modify the terms and conditions of any award granted to
Service Providers outside the United States to comply with applicable foreign
laws;
(iv) Establish subplans and modify exercise procedures and other
terms and procedures, to the extent such actions may be necessary or advisable.
Any subplans and modifications to Plan terms and procedures established under
this Section 15(c) by the Administrator shall be attached to this Plan document
as appendices; and
(v) Take any action, before or after an award is made, that it
deems advisable to obtain approval or comply with any necessary local government
regulatory exemptions or approvals.
Notwithstanding the above, the Administrator may not take any
actions hereunder, and no awards shall be granted, that would violate the
Exchange Act, the Code, any securities law, or governing statute or any other
Applicable Law.
(d) EFFECT OF AMENDMENT OR TERMINATION. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee or
Grantee, as determined by the Administrator in its sole discretion unless
mutually agreed otherwise between the Optionee or Grantee and the Company, which
agreement must be in writing and signed by the Optionee or Grantee and the
Company. Termination of the Plan shall not affect the Administrator's ability to
exercise the powers granted to it hereunder with respect to Options, Stock
Purchase Rights, SARs, Restricted Stock Units or Restricted Stock granted under
the Plan prior to the date of such termination.
16. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant to the
exercise of an Option, Stock Purchase Right or SAR and shares of Restricted
Stock and/or shares underlying Restricted Stock Units shall not be released from
the custody of the Company if so held, unless the exercise of such Option, Stock
Purchase Right or SAR and the issuance and delivery of such Shares shall comply
with Applicable Laws and shall be further subject to the approval of counsel for
the Company with respect to such compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the exercise of an
Option, Stock Purchase Right or SAR, the Company may require the person
exercising such Option, Stock Purchase Right or SAR to represent and warrant at
the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation is
required.
17. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
18. RESERVATION OF SHARES. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
19. STOCKHOLDER APPROVAL. The Plan shall be subject to approval by the
stockholders of the Company within twelve (12) months after the date the Plan is
adopted. Such stockholder approval shall be obtained in the manner and to the
degree required under Applicable Laws.
20. GOVERNING LAW. The terms of this Plan shall be governed by the Laws of
the State of Delaware without reference to principles of conflict of laws, as
applied to contracts executed in and performed wholly within the State of
Delaware.
21. TAX WITHHOLDING.
(a) An Optionee or Grantee may be required to pay to the Company or
any Parent, Subsidiary or other Affiliate, and the Company or any Parent,
Subsidiary or other Affiliate shall have the right and is hereby authorized to
withhold from any Shares or other property deliverable under any award under the
Plan or from any compensation or other amounts owing to an Optionee or Grantee
the amount (in cash, Shares or other property) of any required tax withholding
and payroll taxes in respect of the grant or exercise or lapse of restrictions
with respect to an award, and to take such other action as may be necessary in
the opinion of the Company, to satisfy all obligations for the payment of such
taxes.
(b) Without limiting the generality of clause (a) above, if so
provided in a Restricted Stock Agreement, a Restricted Stock Unit Agreement, an
Option Agreement, SAR Agreement or Restricted Stock Purchase Agreement, a
Grantee or an Optionee may satisfy, in whole or in part, the foregoing
withholding liability (but no more than the minimum required withholding
liability) by delivery of Shares owned by the Grantee or the Optionee (which are
not subject to any pledge or other security interest) with a Fair Market Value
equal to such withholding liability or by having the Company withhold from the
number of Shares otherwise issuable pursuant to the exercise of the Option,
Stock Purchase Right or SAR or lapse of restrictions on the Restricted Stock
and/or the Restricted Stock Units a number of shares with a Fair Market Value
equal to such withholding liability.
22. PRIVILEGES OF STOCK OWNERSHIP. Except as otherwise specifically
provided in the Plan, no person shall be entitled to the privileges of ownership
in respect of shares of Common Stock which are subject to Options, Restricted
Stock, Restricted Stock Units, Stock Purchase Rights or SARs hereunder until
such shares have been issued to that person.
23. CLAIM TO AWARDS AND EMPLOYMENT RIGHTS. No Service Provider shall have
any claim or right to be granted Restricted Stock, Restricted Stock Units,
Options, Stock Purchase Rights or SARs under the Plan or, having been selected
for the grant of an award, to be selected for a grant of any other award.
Neither the Plan nor any action taken hereunder shall be construed as giving
any Optionee or Grantee any right to be retained in the employ or service of the
Company, Subsidiaries or Affiliates.
Exhibit 5.1
[Letterhead of Wachtell, Lipton, Rosen & Katz]
July 2, 2003
InterActiveCorp
152 West 57th Street
New York, New York 10019
Re: Post-Effective Amendment No. 1 on Form S-8
to Registration Statement on Form S-4 (File No. 333-105014)
Ladies and Gentlemen:
We have acted as special counsel to InterActiveCorp, a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Post-Effective Amendment No. 1 on Form S-8 ("Post-Effective Amendment") to
the registration statement on Form S-4 (File No. 333-105014) (as amended, the
"Registration Statement") relating to up to 6,731,280 shares of common stock,
par value $0.01 per share (the "Common Stock"), of the Company to be issued by
the Company pursuant to the Hotels.com 2000 Stock Plan, as amended, the
Hotels.com Directors' Stock Option Plan and the Hotels.com 2003 Stock Plan
(collectively, the "Plans").
In rendering this opinion, we have examined such corporate records and
other documents (including the Company's amended and restated certificate of
incorporation, as amended, amended and restated bylaws, the Registration
Statement and the Plans), and we have reviewed such matters of law, as we have
deemed necessary or appropriate. In rendering this opinion, we have, with your
consent, relied upon oral and written representations of officers of the Company
and certificates of officers of the Company and public officials with respect to
the accuracy of the factual matters addressed in such representations and
certificates. In addition, in rendering this opinion we have, with your consent,
assumed the genuineness of all signatures or instruments relied upon by us, and
the conformity of certified copies submitted to us with the original documents
to which such certified copies relate.
We are members of the Bar of the State of New York and we express no
opinion as to the laws of any jurisdiction other than the federal laws of the
United States, the General Corporation Law of the State of Delaware and the laws
of the State of New York.
Based on and subject to the foregoing, we are of the opinion that the
Common Stock will be, upon issuance and delivery pursuant to the terms and
conditions set forth in the Registration Statement and the Plans, legally
issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement and in the
related prospectus contained therein as the attorneys who passed upon the
legality of the Common Stock and to the filing of a copy of this opinion as
Exhibit 5.1 to the Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Post-Effective Amendment No. 1 on Form S-8 to Form S-4 No. 333-105014) of
InterActiveCorp (formerly USA Interactive) of our report dated February 6, 2003,
with respect to the consolidated financial statements and schedule of USA
Interactive (presently InterActiveCorp) included in its Annual Report
(Form 10-K) for the year ended December 31, 2002, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
June 30, 2003
